G.R. No.
180906             October 7, 2008 causing the arrest of therein petitioners, or
THE SECRETARY OF NATIONAL DEFENSE,
THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, petitioners,
vs.
RAYMOND MANALO and REYNALDO
MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are
separated from the rest of the world behind secret
walls, they are not separated from the
constitutional protection of their basic rights. The
constitution is an overarching sky that covers all in
its protection. The case at bar involves the rights to
life, liberty and security in the first petition for a
writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule
45 of the Rules of Court in relation to Section 19 1 of
the Rule on the Writ of Amparo, seeking to reverse
and set aside on both questions of fact and law,
the Decision promulgated by the Court of Appeals
in C.A. G.R. AMPARO No. 00001, entitled "Raymond
Manalo and Reynaldo Manalo, petitioners, versus
The Secretary of National Defense, the Chief of
Staff, Armed Forces of the Philippines,
respondents."
This case was originally a Petition for Prohibition,
Injunction, and Temporary Restraining Order
(TRO)2 filed before this Court by herein
respondents (therein petitioners) on August 23,
2007 to stop herein petitioners (therein
respondents) and/or their officers and agents from
depriving them of their right to liberty and other
basic rights. Therein petitioners also sought
ancillary remedies, Protective Custody Orders,
Appointment of Commissioner, Inspection and
Access Orders, and all other legal and equitable
reliefs under Article VIII, Section 5(5)3 of the 1987
Constitution and Rule 135, Section 6 of the Rules of
Court. In our Resolution dated August 24, 2007, we
(1) ordered the Secretary of the Department of
National Defense and the Chief of Staff of the AFP,
their agents, representatives, or persons acting in
their stead, including but not limited to the Citizens
Armed Forces Geographical Unit (CAFGU) to submit
their Comment; and (2) enjoined them from
otherwise restricting, curtailing, abridging, or
depriving them of their right to life, liberty, and
other basic rights as guaranteed under Article III,
Section 14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending,
the Rule on the Writ of Amparo took effect on
October 24, 2007. Forthwith, therein petitioners
filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit
Supporting Affidavits, and to Grant Interim and
Final Amparo Reliefs. They prayed that: (1) the
petition be considered a Petition for the Writ
of Amparo under Sec. 266 of the Amparo Rule; (2)
the Court issue the writ commanding therein
respondents to make a verified return within the
period provided by law and containing the specific
matter required by law; (3) they be granted the
interim reliefs allowed by the Amparo Rule and all
other reliefs prayed for in the petition but not
covered by the Amparo Rule; (4) the Court, after
hearing, render judgment as required in Sec. 187 of
the Amparo Rule; and (5) all other just and
equitable reliefs.8
On October 25, 2007, the Court resolved to treat
the August 23, 2007 Petition as a petition under
the Amparo Rule and further resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be
issued to respondents requiring them to file
with the CA (Court of Appeals) a verified
written return within five (5) working days
from service of the writ. We REMAND the
petition to the CA and designate the
Division of Associate Justice Lucas P.
Bersamin to conduct the summary hearing
on the petition on November 8, 2007 at
2:00 p.m. and decide the petition in
accordance with the Rule on the Writ
of Amparo.9
On December 26, 2007, the Court of Appeals
rendered a decision in favor of therein petitioners
(herein respondents), the dispositive portion of
which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE
WRIT OF AMPARO is GRANTED.
 The respondents SECRETARY OF
NATIONAL DEFENSE and AFP CHIEF OF
STAFF are hereby REQUIRED:
1. To furnish to the petitioners and
to this Court within five days from
notice of this decision all official and
unofficial reports of the investigation
undertaken in connection with their
case, except those already on file
herein;
2. To confirm in writing the present
places of official assignment of
M/Sgt Hilario aka Rollie Castillo and
Donald Caigas within five days from
notice of this decision.
3. To cause to be produced to this
Court all medical reports, records
and charts, reports of any treatment
given or recommended and
medicines prescribed, if any, to the
petitioners, to include a list of
medical and (sic) personnel (military
and civilian) who attended to them
from February 14, 2006 until August
12, 2007 within five days from
notice of this decision.
The compliance with this decision shall be
made under the signature and oath of
respondent AFP Chief of Staff or his duly
authorized deputy, the latter's authority to
be express and made apparent on the face
of the sworn compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we
first unfurl the facts as alleged by herein
respondents:
Respondent Raymond Manalo recounted that about
one or two weeks before February 14, 2006,
several uniformed and armed soldiers and
members of the CAFGU summoned to a meeting all
the residents of their barangay in San Idelfonso,
Bulacan. Respondents were not able to attend as
they were not informed of the gathering, but
Raymond saw some of the soldiers when he passed
by the barangay hall.11
On February 14, 2006, Raymond was sleeping in
their house in Buhol na Mangga, San Ildefonso,
Bulacan. At past noon, several armed soldiers
wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked
him if he was Bestre, but his mother, Ester Manalo,
replied that he was Raymond, not Bestre. The
armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then
handcuffed, brought to the rear of his house, and
forced to the ground face down. He was kicked on
the hip, ordered to stand and face up to the light,
then forcibly brought near the road. He told his
mother to follow him, but three soldiers stopped
her and told her to stay.12
Among the men who came to take him, Raymond
recognized brothers Michael de la Cruz, Madning de
la Cruz, "Puti" de la Cruz, and "Pula" de la Cruz,
who all acted as lookout. They were all members of
the CAFGU and residing in Manuzon, San Ildefonso,
Bulacan. He also recognized brothers Randy
Mendoza and Rudy Mendoza, also members of the
CAFGU. While he was being forcibly taken, he also
saw outside of his house two barangay councilors,
Pablo Cunanan and Bernardo Lingasa, with some
soldiers and armed men.13
The men forced Raymond into a white L300 van.
Once inside, he was blindfolded. Before being
blindfolded, he saw the faces of the soldiers who
took him. Later, in his 18 months of captivity, he
learned their names. The one who drove the van
was Rizal Hilario alias Rollie Castillo, whom he
estimated was about 40 years of age or older. The
leader of the team who entered his house and
abducted him was "Ganata." He was tall, thin,
curly-haired and a bit old. Another one of his
abductors was "George" who was tall, thin, white-
skinned and about 30 years old.14
The van drove off, then came to a stop. A person
was brought inside the van and made to sit beside
Raymond. Both of them were beaten up. On the
road, he recognized the voice of the person beside
him as his brother Reynaldo's. The van stopped
several times until they finally arrived at a house.
Raymond and Reynaldo were each brought to a
different room. With the doors of their rooms left
open, Raymond saw several soldiers continuously
hitting his brother Reynaldo on the head and other
parts of his body with the butt of their guns for
about 15 minutes. After which, Reynaldo was
brought to his (Raymond's) room and it was his
(Raymond's) turn to be beaten up in the other
room. The soldiers asked him if he was a member
of the New People's Army. Each time he said he
was not, he was hit with the butt of their guns. He
was questioned where his comrades were, how
many soldiers he had killed, and how many NPA
members he had helped. Each time he answered
none, they hit him.15
In the next days, Raymond's interrogators
appeared to be high officials as the soldiers who
beat him up would salute them, call them "sir," and
treat them with respect. He was in blindfolds when
interrogated by the high officials, but he saw their
faces when they arrived and before the blindfold
was put on. He noticed that the uniform of the high
officials was different from those of the other
soldiers. One of those officials was tall and thin,
wore white pants, tie, and leather shoes, instead of
combat boots. He spoke in Tagalog and knew much
about his parents and family, and a habeas
corpus case filed in connection with the
respondents' abduction.16 While these officials
interrogated him, Raymond was not manhandled.
But once they had left, the soldier guards beat him
up. When the guards got drunk, they also
manhandled respondents. During this time,
Raymond was fed only at night, usually with left-
over and rotten food.17
On the third week of respondents' detention, two
men arrived while Raymond was sleeping and beat
him up. They doused him with urine and hot water,
hit his stomach with a piece of wood, slapped his
forehead twice with a .45 pistol, punched him on
the mouth, and burnt some parts of his body with a
burning wood. When he could no longer endure the
torture and could hardly breathe, they stopped.
They then subjected Reynaldo to the same ordeal
in another room. Before their torturers left, they
warned Raymond that they would come back the
next day and kill him.18
The following night, Raymond attempted to escape.
He waited for the guards to get drunk, then made
noise with the chains put on him to see if they
were still awake. When none of them came to
check on him, he managed to free his hand from
the chains and jumped through the window. He
passed through a helipad and firing range and
stopped near a fishpond where he used stones to
break his chains. After walking through a forested
area, he came near a river and an Iglesia ni Kristo
church. He talked to some women who were doing
the laundry, asked where he was and the road to
Gapan. He was told that he was in Fort
Magsaysay.19 He reached the highway, but some
soldiers spotted him, forcing him to run away. The
soldiers chased him and caught up with him. They
brought him to another place near the entrance of
what he saw was Fort Magsaysay. He was boxed
repeatedly, kicked, and hit with chains until his
back bled. They poured gasoline on him. Then a
so-called "Mam" or "Madam" suddenly called,
saying that she wanted to see Raymond before he
was killed. The soldiers ceased the torture and he
was returned inside Fort Magsaysay where
Reynaldo was detained.20
For some weeks, the respondents had a respite
from all the torture. Their wounds were treated.
When the wounds were almost healed, the torture
resumed, particularly when respondents' guards
got drunk.21
Raymond recalled that sometime in April until May
2006, he was detained in a room enclosed by steel
bars. He stayed all the time in that small room
measuring 1 x 2 meters, and did everything there,
including urinating, removing his bowels, bathing,
eating and sleeping. He counted that eighteen
people22 had been detained in that bartolina,
including his brother Reynaldo and himself.23
For about three and a half months, the
respondents were detained in Fort Magsaysay.
They were kept in a small house with two rooms
and a kitchen. One room was made into
the bartolina. The house was near the firing range,
helipad and mango trees. At dawn, soldiers
marched by their house. They were also sometimes
detained in what he only knew as the "DTU."24
At the DTU, a male doctor came to examine
respondents. He checked their body and eyes, took
their urine samples and marked them. When asked
how they were feeling, they replied that they had a
hard time urinating, their stomachs were aching,
and they felt other pains in their body. The next
day, two ladies in white arrived. They also
examined respondents and gave them medicines,
including orasol, amoxicillin and mefenamic acid.
They brought with them the results of respondents'
urine test and advised them to drink plenty of
water and take their medicine. The two ladies
returned a few more times. Thereafter, medicines
were sent through the "master" of the DTU,
"Master" Del Rosario alias Carinyoso at Puti.
Respondents were kept in the DTU for about two
weeks. While there, he met a soldier named Efren
who said that Gen. Palparan ordered him to
monitor and take care of them.25
One day, Rizal Hilario fetched respondents in a
Revo vehicle. They, along with Efren and several
other armed men wearing fatigue suits, went to a
detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks
in a big two-storey house. Hilario and Efren stayed
with them. While there, Raymond was beaten up
by Hilario's men.26
From Pinaud, Hilario and Efren brought
respondents to Sapang, San Miguel, Bulacan on
board the Revo. They were detained in a big
unfinished house inside the compound of "Kapitan"
for about three months. When they arrived in
Sapang, Gen. Palparan talked to them. They were
brought out of the house to a basketball court in
the center of the compound and made to sit. Gen.
Palparan was already waiting, seated. He was
about two arms' length away from respondents. He
began by asking if respondents felt well already, to
which Raymond replied in the affirmative. He asked
Raymond if he knew him. Raymond lied that he did
not. He then asked Raymond if he would be scared
if he were made to face Gen. Palparan. Raymond
responded that he would not be because he did not
believe that Gen. Palparan was an evil man.27
Raymond narrated his conversation with Gen.
Palparan in his affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na
kaharap mo na ako, di ka ba natatakot sa
akin?"
Sumagot akong, "Siyempre po, natatakot
din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko
kayo ng isang pagkakataon na mabuhay,
basta't sundin n'yo ang lahat ng sasabihin
ko... sabihin mo sa magulang mo - huwag
pumunta sa mga rali, sa hearing, sa
Karapatan at sa Human Right dahil niloloko
lang kayo. Sabihin sa magulang at lahat sa
bahay na huwag paloko doon. Tulungan
kami na kausapin si Bestre na sumuko na sa
gobyerno."28
Respondents agreed to do as Gen. Palparan told
them as they felt they could not do otherwise. At
about 3:00 in the morning, Hilario, Efren and the
former's men - the same group that abducted them
- brought them to their parents' house. Raymond
was shown to his parents while Reynaldo stayed in
the Revo because he still could not walk. In the
presence of Hilario and other soldiers, Raymond
relayed to his parents what Gen. Palparan told him.
As they were afraid, Raymond's parents acceded.
Hilario threatened Raymond's parents that if they
continued to join human rights rallies, they would
never see their children again. The respondents
were then brought back to Sapang.29
When respondents arrived back in Sapang, Gen.
Palparan was about to leave. He was talking with
the four "masters" who were there: Arman,
Ganata, Hilario and Cabalse.30 When Gen. Palparan
saw Raymond, he called for him. He was in a big
white vehicle. Raymond stood outside the vehicle
as Gen. Palparan told him to gain back his strength
and be healthy and to take the medicine he left for
him and Reynaldo. He said the medicine was
expensive at Php35.00 each, and would make them
strong. He also said that they should prove that
they are on the side of the military and warned that
they would not be given another chance.31 During
his testimony, Raymond identified Gen. Palparan by
his picture.32
One of the soldiers named Arman made Raymond
take the medicine left by Gen. Palparan. The
medicine, named "Alive," was green and yellow.
Raymond and Reynaldo were each given a box of
this medicine and instructed to take one capsule a
day. Arman checked if they were getting their dose
of the medicine. The "Alive" made them sleep each
time they took it, and they felt heavy upon waking
up.33
After a few days, Hilario arrived again. He took
Reynaldo and left Raymond at Sapang. Arman
instructed Raymond that while in Sapang, he
should introduce himself as "Oscar," a military
trainee from Sariaya, Quezon, assigned in Bulacan.
While there, he saw again Ganata, one of the men
who abducted him from his house, and got
acquainted with other military men and civilians.34
After about three months in Sapang, Raymond was
brought to Camp Tecson under the 24th Infantry
Battalion. He was fetched by three unidentified
men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute
ride, his blindfold was removed. Chains were put
on him and he was kept in the barracks.35
The next day, Raymond's chains were removed and
he was ordered to clean outside the barracks. It
was then he learned that he was in a detachment
of the Rangers. There were many soldiers,
hundreds of them were training. He was also
ordered to clean inside the barracks. In one of the
rooms therein, he met Sherlyn Cadapan from
Laguna. She told him that she was a student of the
University of the Philippines and was abducted in
Hagonoy, Bulacan. She confided that she had been
subjected to severe torture and raped. She was
crying and longing to go home and be with her
parents. During the day, her chains were removed
and she was made to do the laundry.36
After a week, Reynaldo was also brought to Camp
Tecson. Two days from his arrival, two other
captives, Karen Empeño and Manuel Merino,
arrived. Karen and Manuel were put in the room
with "Allan" whose name they later came to know
as Donald Caigas, called "master" or "commander"
by his men in the 24th Infantry Battalion. Raymond
and Reynaldo were put in the adjoining room. At
times, Raymond and Reynaldo were threatened,
and Reynaldo was beaten up. In the daytime, their
chains were removed, but were put back on at
night. They were threatened that if they escaped,
their families would all be killed.37
On or about October 6, 2006, Hilario arrived in
Camp Tecson. He told the detainees that they
should be thankful they were still alive and should
continue along their "renewed life." Before the
hearing of November 6 or 8, 2006, respondents
were brought to their parents to instruct them not
to attend the hearing. However, their parents had
already left for Manila. Respondents were brought
back to Camp Tecson. They stayed in that camp
from September 2006 to November 2006, and
Raymond was instructed to continue using the
name "Oscar" and holding himself out as a military
trainee. He got acquainted with soldiers of the
24th Infantry Battalion whose names and
descriptions he stated in his affidavit.38
On November 22, 2006, respondents, along with
Sherlyn, Karen, and Manuel, were transferred to a
camp of the 24th Infantry Battalion in Limay,
Bataan. There were many huts in the camp. They
stayed in that camp until May 8, 2007. Some
soldiers of the battalion stayed with them. While
there, battalion soldiers whom Raymond knew as
"Mar" and "Billy" beat him up and hit him in the
stomach with their guns. Sherlyn and Karen also
suffered enormous torture in the camp. They were
all made to clean, cook, and help in raising
livestock.39
Raymond recalled that when "Operation Lubog"
was launched, Caigas and some other soldiers
brought him and Manuel with them to take and kill
all sympathizers of the NPA. They were brought to
Barangay Bayan-bayanan, Bataan where he
witnessed the killing of an old man doing kaingin.
The soldiers said he was killed because he had a
son who was a member of the NPA and he coddled
NPA members in his house.40 Another time, in
another "Operation Lubog," Raymond was brought
to Barangay Orion in a house where NPA men
stayed. When they arrived, only the old man of the
house who was sick was there. They spared him
and killed only his son right before Raymond's
eyes.41
From Limay, Raymond, Reynaldo, Sherlyn, Karen,
and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his
men stayed with them. A retired army soldier was
in charge of the house. Like in Limay, the five
detainees were made to do errands and chores.
They stayed in Zambales from May 8 or 9, 2007
until June 2007.42
In June 2007, Caigas brought the five back to the
camp in Limay. Raymond, Reynaldo, and Manuel
were tasked to bring food to detainees brought to
the camp. Raymond narrated what he witnessed
and experienced in the camp, viz:
Isang gabi, sinabihan kami ni Donald
(Caigas) na matulog na kami. Nakita ko si
Donald na inaayos ang kanyang baril, at
nilagyan ng silenser. Sabi ni Donald na kung
mayroon man kaming makita o marinig,
walang nangyari. Kinaumagahan, nakita
naming ang bangkay ng isa sa mga bihag
na dinala sa kampo. Mayroong binuhos sa
kanyang katawan at ito'y sinunog.
Masansang ang amoy.
Makaraan ang isang lingo, dalawang
bangkay and ibinaba ng mga unipormadong
sundalo mula sa 6 x 6 na trak at dinala sa
loob ng kampo. May naiwang mga bakas ng
dugo habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may
dinukot sila na dalawang Ita. Itinali sila sa
labas ng kubo, piniringan, ikinadena at labis
na binugbog. Nakita kong nakatakas ang isa
sa kanila at binaril siya ng sundalo ngunit
hindi siya tinamaan. Iyong gabi nakita kong
pinatay nila iyong isang Ita malapit sa Post
3; sinilaban ang bangkay at ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang
bangkay ang dinala sa kampo. Ibinaba ang
mga bangkay mula sa pick up trak, dinala
ang mga bangkay sa labas ng bakod.
Kinaumagahan nakita kong mayroong
sinilaban, at napakamasangsang ang amoy.
May nakilala rin akong 1 retiradong koronel
at 1 kasama niya. Pinakain ko sila. Sabi nila
sa akin na dinukot sila sa Bataan. Iyong
gabi, inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong
araw, nilabas ni Lat si Manuel dahil
kakausapin daw siya ni Gen. Palparan.
Nakapiring si Manuel, wala siyang suot
pang-itaas, pinosasan. Nilakasan ng mga
sundalo ang tunog na galing sa istiryo ng
sasakyan. Di nagtagal, narinig ko ang hiyaw
o ungol ni Manuel. Sumilip ako sa isang
haligi ng kamalig at nakita kong sinisilaban
si Manuel.
Kinaumagahan, naka-kadena pa kami.
Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya
kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap
kami ni Donald. Tinanong kami kung ano
ang sabi ni Manuel sa amin. Sabi ni Donald
huwag na raw naming hanapin ang
dalawang babae at si Manuel, dahil
magkakasama na yung tatlo. Sabi pa ni
Donald na kami ni Reynaldo ay magbagong
buhay at ituloy namin ni Reynaldo ang
trabaho. Sa gabi, hindi na kami
kinakadena.43
On or about June 13, 2007, Raymond and
Reynaldo were brought to Pangasinan, ostensibly
to raise poultry for Donald (Caigas). Caigas told
respondents to also farm his land, in exchange for
which, he would take care of the food of their
family. They were also told that they could farm a
small plot adjoining his land and sell their produce.
They were no longer put in chains and were
instructed to use the names Rommel (for
Raymond) and Rod (for Reynaldo) and represent
themselves as cousins from Rizal, Laguna.44
Respondents started to plan their escape. They
could see the highway from where they stayed.
They helped farm adjoining lands for which they
were paid Php200.00 or Php400.00 and they saved
their earnings. When they had saved Php1,000.00
each, Raymond asked a neighbor how he could get
a cellular phone as he wanted to exchange text
messages with a girl who lived nearby. A phone
was pawned to him, but he kept it first and did not
use it. They earned some more until they had
saved Php1,400.00 between them.
There were four houses in the compound.
Raymond and Reynaldo were housed in one of
them while their guards lived in the other three.
Caigas entrusted respondents to Nonong, the head
of the guards. Respondents' house did not have
electricity. They used a lamp. There was no
television, but they had a radio. In the evening of
August 13, 2007, Nonong and his cohorts had a
drinking session. At about 1:00 a.m., Raymond
turned up the volume of the radio. When none of
the guards awoke and took notice, Raymond and
Reynaldo proceeded towards the highway, leaving
behind their sleeping guards and barking dogs.
They boarded a bus bound for Manila and were
thus freed from captivity.45
Reynaldo also executed an affidavit affirming the
contents of Raymond's affidavit insofar as they
related to matters they witnessed together.
Reynaldo added that when they were taken from
their house on February 14, 2006, he saw the faces
of his abductors before he was blindfolded with his
shirt. He also named the soldiers he got acquainted
with in the 18 months he was detained. When
Raymond attempted to escape from Fort
Magsaysay, Reynaldo was severely beaten up and
told that they were indeed members of the NPA
because Raymond escaped. With a .45 caliber
pistol, Reynaldo was hit on the back and punched
in the face until he could no longer bear the pain.
At one point during their detention, when Raymond
and Reynaldo were in Sapang, Reynaldo was
separated from Raymond and brought to Pinaud by
Rizal Hilario. He was kept in the house of Kapitan, a
friend of Hilario, in a mountainous area. He was
instructed to use the name "Rodel" and to
represent himself as a military trainee from
Meycauayan, Bulacan. Sometimes, Hilario brought
along Reynaldo in his trips. One time, he was
brought to a market in San Jose, del Monte,
Bulacan and made to wait in the vehicle while
Hilario was buying. He was also brought to Tondo,
Manila where Hilario delivered boxes of "Alive" in
different houses. In these trips, Hilario drove a
black and red vehicle. Reynaldo was blindfolded
while still in Bulacan, but allowed to remove the
blindfold once outside the province. In one of their
trips, they passed by Fort Magsaysay and Camp
Tecson where Reynaldo saw the sign board,
"Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts
of respondents Raymond and Reynaldo Manalo. Dr.
Molino specialized in forensic medicine and was
connected with the Medical Action Group, an
organization handling cases of human rights
violations, particularly cases where torture was
involved. He was requested by an NGO to conduct
medical examinations on the respondents after
their escape. He first asked them about their
ordeal, then proceeded with the physical
examination. His findings showed that the scars
borne by respondents were consistent with their
account of physical injuries inflicted upon them.
The examination was conducted on August 15,
2007, two days after respondents' escape, and the
results thereof were reduced into writing. Dr.
Molino took photographs of the scars. He testified
that he followed the Istanbul Protocol in conducting
the examination.47
Petitioners dispute respondents' account of their
alleged abduction and torture. In compliance with
the October 25, 2007 Resolution of the Court, they
filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement
therein, viz:
13. Petitioners Raymond and Reynaldo
Manalo were not at any time arrested,
forcibly abducted, detained, held
incommunicado, disappeared or under the
custody by the military. This is a settled
issue laid to rest in the habeas corpus case
filed in their behalf by petitioners' parents
before the Court of Appeals in C.A.-G.R. SP
No. 94431 against M/Sgt. Rizal Hilario aka
Rollie Castillo, as head of the 24th Infantry
Battalion; Maj. Gen. Jovito Palparan, as
Commander of the 7th Infantry Division in
Luzon; Lt. Gen. Hermogenes Esperon, in his
capacity as the Commanding General of the
Philippine Army, and members of the
Citizens Armed Forces Geographical Unit
(CAFGU), namely: Michael dela Cruz, Puti
dela Cruz, Madning dela Cruz, Pula dela
Cruz, Randy Mendoza and Rudy Mendoza.
The respondents therein submitted a return
of the writ... On July 4, 2006, the Court of
Appeals dropped as party respondents Lt.
Gen. Hermogenes C. Esperon, Jr., then
Commanding General of the Philippine
Army, and on September 19, 2006, Maj.
(sic) Jovito S. Palparan, then Commanding
General, 7th Infantry Division, Philippine
Army, stationed at Fort Magsaysay, Palayan
City, Nueva Ecija, upon a finding that no
evidence was introduced to establish their
personal involvement in the taking of the
Manalo brothers. In a Decision dated June
27, 2007..., it exonerated M/Sgt. Rizal
Hilario aka Rollie Castillo for lack of
evidence establishing his involvement in any
capacity in the disappearance of the Manalo
brothers, although it held that the
remaining respondents were illegally
detaining the Manalo brothers and ordered
them to release the latter.48
Attached to the Return of the Writ was the affidavit
of therein respondent (herein petitioner) Secretary
of National Defense, which attested that he
assumed office only on August 8, 2007 and was
thus unaware of the Manalo brothers' alleged
abduction. He also claimed that:
7. The Secretary of National Defense does
not engage in actual military directional
operations, neither does he undertake
command directions of the AFP units in the
field, nor in any way micromanage the AFP
operations. The principal responsibility of
the Secretary of National Defense is focused
in providing strategic policy direction to the
Department (bureaus and agencies)
including the Armed Forces of the
Philippines;
8. In connection with the Writ
of Amparo issued by the Honorable
Supreme Court in this case, I have directed
the Chief of Staff, AFP to institute
immediate action in compliance with Section
9(d) of the Amparo Rule and to submit
report of such compliance... Likewise, in a
Memorandum Directive also dated October
31, 2007, I have issued a policy directive
addressed to the Chief of Staff, AFP that the
AFP should adopt the following rules of
action in the event the Writ of Amparo is
issued by a competent court against any
members of the AFP:
(1) to verify the identity of the
aggrieved party;
(2) to recover and preserve evidence
related to the death or
disappearance of the person
identified in the petition which may
aid in the prosecution of the person
or persons responsible;
(3) to identify witnesses and obtain
statements from them concerning
the death or disappearance;
(4) to determine the cause, manner,
location and time of death or
disappearance as well as any pattern
or practice that may have brought
about the death or disappearance;
(5) to identify and apprehend the
person or persons involved in the
death or disappearance; and
(6) to bring the suspected offenders
before a competent court.49
Therein respondent AFP Chief of Staff also
submitted his own affidavit, attached to the Return
of the Writ, attesting that he received the above
directive of therein respondent Secretary of
National Defense and that acting on this directive,
he did the following:
3.1. As currently designated Chief of Staff,
Armed Forces of the Philippines (AFP), I
have caused to be issued directive to the
units of the AFP for the purpose of
establishing the circumstances of the
alleged disappearance and the recent
reappearance of the petitioners.
3.2. I have caused the immediate
investigation and submission of the result
thereof to Higher headquarters and/or
direct the immediate conduct of the
investigation on the matter by the
concerned unit/s, dispatching Radio
Message on November 05, 2007, addressed
to the Commanding General, Philippine
Army (Info: COMNOLCOM, CG, 71D PA and
CO 24 IB PA). A Copy of the Radio Message
is attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the
investigations conducted or to be conducted
by the concerned unit relative to the
circumstances of the alleged disappearance
of the persons in whose favor the Writ
of Amparo has been sought for as soon as
the same has been furnished Higher
headquarters.
3.4. A parallel investigation has been
directed to the same units relative to
another Petition for the Writ
of Amparo (G.R. No. 179994) filed at the
instance of relatives of a certain Cadapan
and Empeño pending before the Supreme
Court.
3.5. On the part of the Armed Forces, this
respondent will exert earnest efforts to
establish the surrounding circumstances of
the disappearances of the petitioners and to
bring those responsible, including any
military personnel if shown to have
participated or had complicity in the
commission of the complained acts, to the
bar of justice, when warranted by the
 findings and the competent evidence that
may be gathered in the process.50
Also attached to the Return of the Writ was the
affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA,
earlier filed in G.R. No. 179994,
another Amparo case in this Court, involving
Cadapan, Empeño and Merino, which averred
among others, viz:
10) Upon reading the allegations in the
Petition implicating the 24th Infantry
Batallion detachment as detention area, I
immediately went to the 24th IB detachment
in Limay, Bataan and found no untoward
incidents in the area nor any detainees by
the name of Sherlyn Cadapan, Karen
Empeño and Manuel Merino being held
captive;
11) There was neither any reports of any
death of Manuel Merino in the 24th IB in
Limay, Bataan;
12) After going to the 24th IB in Limay,
Bataan, we made further inquiries with the
Philippine National Police, Limay, Bataan
regarding the alleged detentions or deaths
and were informed that none was reported
to their good office;
13) I also directed Company Commander
1st Lt. Romeo Publico to inquire into the
alleged beachhouse in Iba, Zambales also
alleged to be a detention place where
Sherlyn Cadapan, Karen Empeño and
Manuel Merino were detained. As per the
inquiry, however, no such beachhouse was
used as a detention place found to have
been used by armed men to detain
Cadapan, Empeño and Merino.51
It was explained in the Return of the Writ that for
lack of sufficient time, the affidavits of Maj. Gen
Jovito S. Palparan (Ret.), M/Sgt. Rizal Hilario aka
Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for
the submission of the Return and would be
subsequently submitted.52
Herein petitioners presented a lone witness in the
summary hearings, Lt. Col. Ruben U. Jimenez,
Provost Marshall, 7th Infantry Division, Philippine
Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this
Division covers Nueva Ecija, Aurora, Bataan,
Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is part of
the 7th Infantry Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by
the Commanding General of the 7th Infantry
Division, Maj. Gen. Jovito Palaran,55 through his
Assistant Chief of Staff,56 to investigate the alleged
abduction of the respondents by CAFGU auxiliaries
under his unit, namely: CAA Michael de la Cruz;
CAA Roman de la Cruz, aka Puti; CAA Maximo de la
Cruz, aka Pula; CAA Randy Mendoza; ex-CAA
Marcelo de la Cruz aka Madning; and a civilian
named Rudy Mendoza. He was directed to
determine: (1) the veracity of the abduction of
Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the
administrative liability of said auxiliaries, if
any.57 Jimenez testified that this particular
investigation was initiated not by a complaint as
was the usual procedure, but because the
Commanding General saw news about the
abduction of the Manalo brothers on the television,
and he was concerned about what was happening
within his territorial jurisdiction.58
Jimenez summoned all six implicated persons for
the purpose of having them execute sworn
statements and conducting an investigation on May
29, 2006.59 The investigation started at 8:00 in the
morning and finished at 10:00 in the evening. 60 The
investigating officer, Technical Sgt. Eduardo
Lingad, took the individual sworn statements of all
six persons on that day. There were no other sworn
statements taken, not even of the Manalo family,
nor were there other witnesses summoned and
investigated61 as according to Jimenez, the directive
to him was only to investigate the six persons.62
Jimenez was beside Lingad when the latter took
the statements.63 The six persons were not known
to Jimenez as it was in fact his first time to meet
them.64 During the entire time that he was beside
Lingad, a subordinate of his in the Office of the
Provost Marshall, Jimenez did not propound a
single question to the six persons.65
Jimenez testified that all six statements were taken
on May 29, 2006, but Marcelo Mendoza and Rudy
Mendoza had to come back the next day to sign
their statements as the printing of their statements
was interrupted by a power failure. Jimenez
testified that the two signed on May 30, 2006, but
the jurats of their statements indicated that they
were signed on May 29, 2006.66 When the Sworn
Statements were turned over to Jimenez, he
personally wrote his investigation report. He began
writing it in the afternoon of May 30, 2006 and
finished it on June 1, 2006.67 He then gave his
report to the Office of the Chief of Personnel.68
As petitioners largely rely on Jimenez's
Investigation Report dated June 1, 2006 for their
evidence, the report is herein substantially quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of
RAYMOND MANALO and REYNALDO
MANALO who were forcibly taken from their
respective homes in Brgy. Buhol na
Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men
and thereafter were forcibly disappeared.
After the said incident, relatives of the
victims filed a case for Abduction in the civil
court against the herein suspects: Michael
dela Cruz, Madning dela Cruz, Puti Dela
Cruz, Pula Dela Cruz, Randy Mendoza and
Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit
(CAFGU).
a) Sworn statement of CAA Maximo F. dela
Cruz, aka Pula dated 29 May 2006 in
(Exhibit "B") states that he was at Sitio
Mozon, Brgy. Bohol na Mangga, San
Ildefonso, Bulacan doing the concrete
building of a church located nearby his
residence, together with some neighbor
thereat. He claims that on 15 February
2006, he was being informed by Brgy.
Kagawad Pablo Umayan about the
abduction of the brothers Raymond and
Reynaldo Manalo. As to the allegation that
he was one of the suspects, he claims that
they only implicated him because he was a
CAFGU and that they claimed that those
who abducted the Manalo brothers are
members of the Military and CAFGU.
Subject vehemently denied any participation
or involvement on the abduction of said
victims.
b) Sworn statement of CAA Roman dela
Cruz y Faustino Aka Puti dtd 29 May 2006 in
(Exhibit "C") states that he is a resident of
Sitio Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan and a CAA member
based at Biak na Bato Detachment, San
Miguel, Bulacan. He claims that Raymond
and Reynaldo Manalo being his neighbors
are active members/sympathizers of the
CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an
NPA Leader operating in their province.
That at the time of the alleged abduction of
the two (2) brothers and for accusing him
to be one of the suspects, he claims that on
February 14, 2006, he was one of those
working at the concrete chapel being
constructed nearby his residence. He claims
further that he just came only to know
about the incident on other day (15 Feb 06)
when he was being informed by Kagawad
Pablo Kunanan. That subject CAA
vehemently denied any participation about
the incident and claimed that they only
implicated him because he is a member of
the CAFGU.
c) Sworn Statement of CAA Randy Mendoza
y Lingas dated 29 May 2006 in (Exhibit "O")
states that he is a resident of Brgy. Buhol
na Mangga, San Ildefonso, Bulacan and a
member of CAFGU based at Biak na Bato
Detachment. That being a neighbor, he was
very much aware about the background of
the two (2) brothers Raymond and
Reynaldo as active supporters of the CPP
NPA in their Brgy. and he also knew their
elder brother "KUMANDER BESTRE" TN:
Rolando Manalo. Being one of the accused,
he claims that on 14 February 2006, he was
at Brgy. Magmarate, San Miguel, Bulacan in
the house of his aunt and he learned only
about the incident when he arrived home in
their place. He claims further that the only
reason why they implicated him was due to
the fact that his mother has filed a criminal
charge against their brother Rolando
Manalo @ KA BESTRE who is an NPA
Commander who killed his father and for
that reason they implicated him in support
of their brother. Subject CAA vehemently
denied any involvement on the abduction of
said Manalo brothers.
d) Sworn Statement of Rudy Mendoza y
Lingasa dated May 29, 2006 in (Exhibit "E")
states that he is a resident of Brgy.
Marungko, Angat, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar
to him being his barriomate when he was
still unmarried and he knew them since
childhood. Being one of the accused, he
claims that on 14 February 2006, he was at
his residence in Brgy. Marungko, Angat,
Bulacan. He claims that he was being
informed only about the incident lately and
he was not aware of any reason why the
two (2) brothers were being abducted by
alleged members of the military and CAFGU.
The only reason he knows why they
implicated him was because there are those
people who are angry with their family
particularly victims of summary execution
(killing) done by their brother @ KA Bestre
Rolando Manalo who is an NPA leader. He
claims further that it was their brother @ KA
BESTRE who killed his father and he was
living witness to that incident. Subject
civilian vehemently denied any involvement
on the abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala
Cruz dated 29 May 2006 in (Exhibit "F")
states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, a farmer and a former CAA based
at Biak na Bato, San Miguel, Bulacan. He
claims that Raymond and Reynaldo Manalo
are familiar to him being their barrio mate.
He claims further that they are active
supporters of CPP/NPA and that their
brother Rolando Manalo @ KA BESTRE is an
NPA leader. Being one of the accused, he
claims that on 14 February 2006, he was in
his residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he
vehemently denied any participation of the
alleged abduction of the two (2) brothers
and learned only about the incident when
rumors reached him by his barrio mates. He
claims that his implication is merely
fabricated because of his relationship to
Roman and Maximo who are his brothers.
f) Sworn statement of Michael dela Cruz y
Faustino dated 29 May 2006 in (Exhibit "G")
states that he is a resident of Sitio Muzon,
Brgy. Buhol na Mangga, San Ildefonso,
Bulacan, the Chief of Brgy. Tanod and a
CAFGU member based at Biak na Bato
Detachment, San Miguel, Bulacan. He
claims that he knew very well the brothers
Raymond and Reynaldo Manalo in their
barangay for having been the Tanod Chief
for twenty (20) years. He alleged further
that they are active supporters or
sympathizers of the CPP/NPA and whose
elder brother Rolando Manalo @ KA BESTRE
is an NPA leader operating within the area.
Being one of the accused, he claims that on
14 Feb 2006 he was helping in the
construction of their concrete chapel in their
place and he learned only about the
incident which is the abduction of Raymond
and Reynaldo Manalo when one of the Brgy.
Kagawad in the person of Pablo Cunanan
informed him about the matter. He claims
further that he is truly innocent of the
allegation against him as being one of the
abductors and he considers everything
fabricated in order to destroy his name that
remains loyal to his service to the
government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of
respondents in this particular case, the
proof of linking them to the alleged
abduction and disappearance of Raymond
and Reynaldo Manalo that transpired on 14
February 2006 at Sitio Muzon, Brgy. Buhol
na Mangga, San Ildefonso, Bulacan, is
unsubstantiated. Their alleged involvement
theretofore to that incident is considered
doubtful, hence, no basis to indict them as
charged in this investigation.
Though there are previous grudges
between each families (sic) in the past to
quote: the killing of the father of Randy and
Rudy Mendoza by @ KA BESTRE TN:
Rolando Manalo, this will not suffice to
establish a fact that they were the ones
who did the abduction as a form of
revenge. As it was also stated in the
testimony of other accused claiming that
the Manalos are active
sympathizers/supporters of the CPP/NPA,
this would not also mean, however, that in
the first place, they were in connivance with
 the abductors. Being their neighbors and as
members of CAFGU's, they ought to be
vigilant in protecting their village from any
intervention by the leftist group, hence
inside their village, they were fully aware of
the activities of Raymond and Reynaldo
Manalo in so far as their connection with
the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this
case shows that the alleged charges of
abduction committed by the above named
respondents has not been established in
this investigation. Hence, it lacks merit to
indict them for any administrative
punishment and/or criminal liability. It is
therefore concluded that they are innocent
of the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo
F. Dela Cruz, Roman dela Cruz, Randy
Mendoza, and two (2) civilians Maximo F.
Dela Cruz and Rudy L. Mendoza be
exonerated from the case.
8. Upon approval, this case can be dropped
and closed.69
In this appeal under Rule 45, petitioners question
the appellate court's assessment of the foregoing
evidence and assail the December 26, 2007
Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND
GRIEVOUSLY ERRED IN BELIEVING AND
GIVING FULL FAITH AND CREDIT TO THE
INCREDIBLE, UNCORROBORATED,
CONTRADICTED, AND OBVIOUSLY
SCRIPTED, REHEARSED AND SELF-
SERVING AFFIDAVIT/TESTIMONY OF
HEREIN RESPONDENT RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND
GRIEVOUSLY ERRED IN REQUIRING
RESPONDENTS (HEREIN PETITIONERS) TO:
(A) FURNISH TO THE MANALO BROTHER(S)
AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF
THE INVESTIGATION UNDERTAKEN IN
CONNECTION WITH THEIR CASE, EXCEPT
THOSE ALREADY IN FILE WITH THE
COURT; (B) CONFIRM IN WRITING THE
PRESENT PLACES OF OFFICIAL
ASSIGNMENT OF M/SGT. HILARIO aka
ROLLIE CASTILLO AND DONALD CAIGAS;
AND (C) CAUSE TO BE PRODUCED TO THE
COURT OF APPEALS ALL MEDICAL
REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR
RECOMMENDED AND MEDICINES
PRESCRIBED, IF ANY, TO THE MANALO
BROTHERS, TO INCLUDE A LIST OF
MEDICAL PERSONNEL (MILITARY AND
CIVILIAN) WHO ATTENDED TO THEM
FROM FEBRUARY 14, 2006 UNTIL AUGUST
12, 2007.70
The case at bar is the first decision on the
application of the Rule on the Writ
of Amparo (Amparo Rule). Let us hearken to its
beginning.
The adoption of the Amparo Rule surfaced as a
recurring proposition in the recommendations that
resulted from a two-day National Consultative
Summit on Extrajudicial Killings and Enforced
Disappearances sponsored by the Court on July 16-
17, 2007. The Summit was "envisioned to provide a
broad and fact-based perspective on the issue of
extrajudicial killings and enforced
disappearances,"71 hence "representatives from all
sides of the political and social spectrum, as well as
all the stakeholders in the justice
system"72 participated in mapping out ways to
resolve the crisis.
On October 24, 2007, the Court promulgated
the Amparo Rule "in light of the prevalence of
extralegal killing and enforced disappearances."73 It
was an exercise for the first time of the Court's
expanded power to promulgate rules to protect our
people's constitutional rights, which made its
maiden appearance in the 1987 Constitution in
response to the Filipino experience of the martial
law regime.74 As the Amparo Rule was intended to
address the intractable problem of "extralegal
killings" and "enforced disappearances," its
coverage, in its present form, is confined to these
two instances or to threats thereof. "Extralegal
killings" are "killings committed without due
process of law, i.e., without legal safeguards or
judicial proceedings."75 On the other hand,
"enforced disappearances" are "attended by the
following characteristics: an arrest, detention or
abduction of a person by a government official or
organized groups or private individuals acting with
the direct or indirect acquiescence of the
government; the refusal of the State to disclose the
fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty
which places such persons outside the protection of
law."76
The writ of Amparo originated in Mexico. "Amparo"
literally means "protection" in Spanish.77 In 1837,
de Tocqueville's Democracy in America became
available in Mexico and stirred great interest. Its
description of the practice of judicial review in the
U.S. appealed to many Mexican jurists.78 One of
them, Manuel Crescencio Rejón, drafted a
constitutional provision for his native state,
Yucatan,79 which granted judges the power to
protect all persons in the enjoyment of their
constitutional and legal rights. This idea was
incorporated into the national constitution in
1847, viz:
The federal courts shall protect any
inhabitant of the Republic in the exercise
and preservation of those rights granted to
him by this Constitution and by laws
enacted pursuant hereto, against attacks by
the Legislative and Executive powers of the
federal or state governments, limiting
themselves to granting protection in the
specific case in litigation, making no general
declaration concerning the statute or
regulation that motivated the violation.80
Since then, the protection has been an important
part of Mexican constitutionalism.81 If, after
hearing, the judge determines that a constitutional
right of the petitioner is being violated, he orders
the official, or the official's superiors, to cease the
violation and to take the necessary measures to
restore the petitioner to the full enjoyment of the
right in question. Amparo thus combines the
principles of judicial review derived from the U.S.
with the limitations on judicial power characteristic
of the civil law tradition which prevails in Mexico. It
enables courts to enforce the constitution by
protecting individual rights in particular cases, but
prevents them from using this power to make law
for the entire nation.82
The writ of Amparo then spread throughout the
Western Hemisphere, gradually evolving into
various forms, in response to the particular needs
of each country.83 It became, in the words of a
justice of the Mexican Federal Supreme Court, one
piece of Mexico's self-attributed "task of conveying
to the world's legal heritage that institution which,
as a shield of human dignity, her own painful
history conceived."84 What began as a protection
against acts or omissions of public authorities in
violation of constitutional rights later evolved for
several purposes: (1) Amparo libertad for the
protection of personal freedom, equivalent to
the habeas corpus writ; (2) Amparo contra
leyes for the judicial review of the constitutionality
of statutes; (3) Amparo casacion for the judicial
review of the constitutionality and legality of a
judicial decision; (4) Amparo administrativo for the
judicial review of administrative actions; and
(5) Amparo agrario for the protection of peasants'
rights derived from the agrarian reform process.85
In Latin American countries, except Cuba, the writ
of Amparo has been constitutionally adopted to
protect against human rights abuses especially
committed in countries under military juntas. In
general, these countries adopted an all-
encompassing writ to protect the whole gamut of
constitutional rights, including socio-economic
rights.86 Other countries like Colombia, Chile,
Germany and Spain, however, have chosen to limit
the protection of the writ of Amparo only to some
constitutional guarantees or fundamental rights.87
In the Philippines, while the 1987 Constitution does
not explicitly provide for the writ of Amparo,
several of the above Amparo protections are
guaranteed by our charter. The second paragraph
of Article VIII, Section 1 of the 1987 Constitution,
the Grave Abuse Clause, provides for the judicial
power "to determine whether or not there has been
a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government." The Clause
accords a similar general protection to human
rights extended by the Amparo contra
leyes, Amparo casacion, and Amparo
administrativo. Amparo libertad is comparable to
the remedy of habeas corpus found in several
provisions of the 1987 Constitution.88 The Clause is
an offspring of the U.S. common law tradition of
judicial review, which finds its roots in the 1803
case of Marbury v. Madison.89
While constitutional rights can be protected under
the Grave Abuse Clause through remedies of
injunction or prohibition under Rule 65 of the Rules
of Court and a petition for habeas corpus under
Rule 102,90 these remedies may not be adequate to
address the pestering problem of extralegal killings
and enforced disappearances. However, with the
swiftness required to resolve a petition for a writ
of Amparo through summary proceedings and the
availability of appropriate interim and permanent
reliefs under the Amparo Rule, this hybrid writ of
the common law and civil law traditions - borne out
of the Latin American and Philippine experience of
human rights abuses - offers a better remedy to
extralegal killings and enforced disappearances and
threats thereof. The remedy provides rapid judicial
relief as it partakes of a summary proceeding that
requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it is
not an action to determine criminal guilt requiring
proof beyond reasonable doubt, or liability for
damages requiring preponderance of evidence, or
administrative responsibility requiring substantial
evidence that will require full and exhaustive
proceedings.91
The writ of Amparo serves both preventive and
curative roles in addressing the problem of
extralegal killings and enforced disappearances. It
is preventive in that it breaks the expectation of
impunity in the commission of these offenses; it is
curative in that it facilitates the subsequent
punishment of perpetrators as it will inevitably yield
leads to subsequent investigation and action. In the
long run, the goal of both the preventive and
curative roles is to deter the further commission of
extralegal killings and enforced disappearances.
In the case at bar, respondents initially filed an
action for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their
officers and agents from depriving the respondents
of their right to liberty and other basic rights on
August 23, 2007,93 prior to the promulgation of
the Amparo Rule. They also sought ancillary
remedies including Protective Custody Orders,
Appointment of Commissioner, Inspection and
Access Orders and other legal and equitable
remedies under Article VIII, Section 5(5) of the
1987 Constitution and Rule 135, Section 6 of the
Rules of Court. When the Amparo Rule came into
effect on October 24, 2007, they moved to have
their petition treated as an Amparo petition as it
would be more effective and suitable to the
circumstances of the Manalo brothers' enforced
disappearance. The Court granted their motion.
With this backdrop, we now come to the arguments
of the petitioner. Petitioners' first argument in
disputing the Decision of the Court of Appeals
states, viz:
The Court of Appeals seriously and
grievously erred in believing and giving full
faith and credit to the incredible
uncorroborated, contradicted, and obviously
scripted, rehearsed and self-serving
affidavit/testimony of herein respondent
Raymond Manalo.94
In delving into the veracity of the evidence, we
need to mine and refine the ore of petitioners'
cause of action, to determine whether the evidence
presented is metal-strong to satisfy the degree of
proof required.
Section 1 of the Rule on the Writ
of Amparo provides for the following causes of
action, viz:
Section 1. Petition. - The petition for a writ
of Amparo is a remedy available to any
person whose right to life, liberty and
security is violated or threatened with
violation by an unlawful act or omission of
a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings
and enforced disappearances or
threats thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for
the degree of proof required, viz:
Sec. 17. Burden of Proof and Standard of
Diligence Required. - The parties shall
establish their claims by substantial
evidence.
xxx xxx xxx
 Sec. 18. Judgment. - ... If the allegations
in the petition are proven by
substantial evidence, the court
shall grant the privilege of the writ and
such reliefs as may be proper and
appropriate; otherwise, the privilege shall
be denied. (emphases supplied)
Substantial evidence has been defined as such
relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.95
After careful perusal of the evidence presented, we
affirm the findings of the Court of Appeals that
respondents were abducted from their houses in
Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on February 14, 2006 and were
continuously detained until they escaped on August
13, 2007. The abduction, detention, torture, and
escape of the respondents were narrated by
respondent Raymond Manalo in a clear and
convincing manner. His account is dotted with
countless candid details of respondents' harrowing
experience and tenacious will to escape, captured
through his different senses and etched in his
memory. A few examples are the following:
"Sumilip ako sa isang haligi ng kamalig at nakita
kong sinisilaban si Manuel."96 "(N)ilakasan ng mga
sundalo ang tunog na galing sa istiryo ng sasakyan.
Di nagtagal, narinig ko ang hiyaw o ungol ni
Manuel."97 "May naiwang mga bakas ng dugo
habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas."98 "Tumigil ako sa
may palaisdaan kung saan ginamit ko ang bato
para tanggalin ang mga kadena."99 "Tinanong ko sa
isang kapit-bahay kung paano ako makakakuha ng
cell phone; sabi ko gusto kong i-text ang isang
babae na nakatira sa malapit na lugar."100
We affirm the factual findings of the appellate
court, largely based on respondent Raymond
Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed
men who were sufficiently identified by the
petitioners (herein respondents) to be
military personnel and CAFGU auxiliaries.
Raymond recalled that the six armed men
who barged into his house through the rear
door were military men based on their attire
of fatigue pants and army boots, and the
CAFGU auxiliaries, namely: Michael de la
Cruz, Madning de la Cruz, Puti de la Cruz
and Pula de la Cruz, all members of the
CAFGU and residents of Muzon, San
Ildefonso, Bulacan, and the brothers Randy
Mendoza and Rudy Mendoza, also CAFGU
members, served as lookouts during the
abduction. Raymond was sure that three of
the six military men were Ganata, who
headed the abducting team, Hilario, who
drove the van, and George. Subsequent
incidents of their long captivity, as narrated
by the petitioners, validated their assertion
of the participation of the elements of the
7th Infantry Division, Philippine Army, and
their CAFGU auxiliaries.
We are convinced, too, that the reason for
the abduction was the suspicion that the
petitioners were either members or
sympathizers of the NPA, considering that
the abductors were looking for Ka Bestre,
who turned out to be Rolando, the brother
of petitioners.
The efforts exerted by the Military
Command to look into the abduction were,
at best, merely superficial. The investigation
of the Provost Marshall of the 7th Infantry
Division focused on the one-sided version of
the CAFGU auxiliaries involved. This one-
sidedness might be due to the fact that the
Provost Marshall could delve only into the
participation of military personnel, but even
then the Provost Marshall should have
refrained from outrightly exculpating the
CAFGU auxiliaries he perfunctorily
investigated...
Gen. Palparan's participation in the
abduction was also established. At the very
least, he was aware of the petitioners'
captivity at the hands of men in uniform
assigned to his command. In fact, he or any
other officer tendered no controversion to
the firm claim of Raymond that he (Gen.
Palparan) met them in person in a
safehouse in Bulacan and told them what
he wanted them and their parents to do or
not to be doing. Gen. Palparan's direct and
personal role in the abduction might not
have been shown but his knowledge of the
dire situation of the petitioners during their
long captivity at the hands of military
personnel under his command bespoke of
his indubitable command policy that
unavoidably encouraged and not merely
tolerated the abduction of civilians without
due process of law and without probable
cause.
In the habeas proceedings, the Court,
through the Former Special Sixth Division
(Justices Buzon, chairman; Santiago-
Lagman, Sr., member; and Romilla-Lontok,
Jr., member/ponente.) found no clear and
convincing evidence to establish that M/Sgt.
Rizal Hilario had anything to do with the
abduction or the detention. Hilario's
involvement could not, indeed, be then
established after Evangeline Francisco, who
allegedly saw Hilario drive the van in which
the petitioners were boarded and ferried
following the abduction, did not testify. (See
the decision of the habeas proceedings at
rollo, p. 52)
However, in this case, Raymond attested
that Hilario drove the white L-300 van in
which the petitioners were brought away
from their houses on February 14, 2006.
Raymond also attested that Hilario
participated in subsequent incidents during
the captivity of the petitioners, one of which
was when Hilario fetched them from Fort
Magsaysay on board a Revo and conveyed
them to a detachment in Pinaud, San
Ildefonso, Bulacan where they were
detained for at least a week in a house of
strong materials (Exhibit D, rollo, p. 205)
and then Hilario (along with Efren) brought
them to Sapang, San Miguel, Bulacan on
board the Revo, to an unfinished house
inside the compound of Kapitan where they
were kept for more or less three months.
(Exhibit D, rollo, p. 205) It was there where
the petitioners came face to face with Gen.
Palparan. Hilario and Efren also brought the
petitioners one early morning to the house
of the petitioners' parents, where only
Raymond was presented to the parents to
relay the message from Gen. Palparan not
to join anymore rallies. On that occasion,
Hilario warned the parents that they would
not again see their sons should they join
any rallies to denounce human rights
violations. (Exhibit D, rollo, pp. 205-206)
Hilario was also among four Master
Sergeants (the others being Arman, Ganata
and Cabalse) with whom Gen. Palparan
conversed on the occasion when Gen.
Palparan required Raymond to take the
medicines for his health. (Exhibit D, rollo, p.
206) There were other occasions when the
petitioners saw that Hilario had a direct
hand in their torture.
It is clear, therefore, that the participation
of Hilario in the abduction and forced
disappearance of the petitioners was
established. The participation of other
military personnel like Arman, Ganata,
Cabalse and Caigas, among others, was
similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas
Court found them personally involved in the
abduction. We also do, for, indeed, the
evidence of their participation is
overwhelming.101
We reject the claim of petitioners that respondent
Raymond Manalo's statements were not
corroborated by other independent and credible
pieces of evidence.102 Raymond's affidavit and
testimony were corroborated by the affidavit of
respondent Reynaldo Manalo. The testimony and
medical reports prepared by forensic specialist Dr.
Molino, and the pictures of the scars left by the
physical injuries inflicted on respondents,103 also
corroborate respondents' accounts of the torture
they endured while in detention. Respondent
Raymond Manalo's familiarity with the facilities in
Fort Magsaysay such as the "DTU," as shown in his
testimony and confirmed by Lt. Col. Jimenez to be
the "Division Training Unit,"104 firms up
respondents' story that they were detained for
some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the
Inter-American Commission on Human Rights, the
Commission considered similar evidence, among
others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the
Guatemalan government. In this case, Sister Ortiz
was kidnapped and tortured in early November
1989. The Commission's findings of fact were
mostly based on the consistent and credible
statements, written and oral, made by Sister Ortiz
regarding her ordeal.106 These statements were
supported by her recognition of portions of the
route they took when she was being driven out of
the military installation where she was
detained.107 She was also examined by a medical
doctor whose findings showed that the 111 circular
second degree burns on her back and abrasions on
her cheek coincided with her account of cigarette
burning and torture she suffered while in
detention.108
With the secret nature of an enforced
disappearance and the torture perpetrated on the
victim during detention, it logically holds that much
of the information and evidence of the ordeal will
come from the victims themselves, and the veracity
of their account will depend on their credibility and
candidness in their written and/or oral statements.
Their statements can be corroborated by other
evidence such as physical evidence left by the
torture they suffered or landmarks they can identify
in the places where they were detained. Where
powerful military officers are implicated, the
hesitation of witnesses to surface and testify
against them comes as no surprise.
We now come to the right of the respondents to
the privilege of the writ of Amparo. There is no
quarrel that the enforced disappearance of both
respondents Raymond and Reynaldo Manalo has
now passed as they have escaped from captivity
and surfaced. But while respondents admit that
they are no longer in detention and are physically
free, they assert that they are not "free in every
sense of the word"109 as their "movements continue
to be restricted for fear that people they have
named in their Judicial Affidavits and testified
against (in the case of Raymond) are still at large
and have not been held accountable in any way.
These people are directly connected to the Armed
Forces of the Philippines and are, thus, in a position
to threaten respondents' rights to life, liberty
and security."110 (emphasis supplied)
Respondents claim that they are under threat of
being once again abducted, kept captive or
even killed, which constitute a direct violation of
their right to security of person.111
Elaborating on the "right to security, in
general," respondents point out that this right is
"often associated with liberty;" it is also seen as an
"expansion of rights based on the prohibition
against torture and cruel and unusual punishment."
Conceding that there is no right to security
expressly mentioned in Article III of the 1987
Constitution, they submit that their rights "to be
kept free from torture and
from incommunicado detention and solitary
detention places112 fall under the general coverage
of the right to security of person under the writ
of Amparo." They submit that the Court ought to
give an expansive recognition of the right to
security of person in view of the State Policy under
Article II of the 1987 Constitution which enunciates
that, "The State values the dignity of every human
person and guarantees full respect for human
rights." Finally, to justify a liberal interpretation of
the right to security of person, respondents cite the
teaching in Moncupa v. Enrile113 that "the right to
liberty may be made more meaningful only if there
is no undue restraint by the State on the exercise
of that liberty"114 such as a requirement to "report
under unreasonable restrictions that amounted to a
deprivation of liberty"115 or being put under
"monitoring and surveillance."116
In sum, respondents assert that their cause of
action consists in the threat to their right to life
and liberty, and a violation of their right to
security.
Let us put this right to security under the
lens to determine if it has indeed been
violated as respondents assert. The right to
security or the right to security of
person finds a textual hook in Article III, Section 2
of the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be
secure in their persons, houses, papers
and effects against unreasonable searches
and seizures of whatever nature and for any
purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue
except upon probable cause to be
determined personally by the judge...
At the core of this guarantee is the immunity of
one's person, including the extensions of his/her
person - houses, papers, and effects - against
government intrusion. Section 2 not only limits the
state's power over a person's home and
possessions, but more importantly, protects the
privacy and sanctity of the person himself.117 The
purpose of this provision was enunciated by the
Court in People v. CFI of Rizal, Branch IX,
Quezon City, viz: 118
 The purpose of the constitutional guarantee
against unreasonable searches and seizures
is to prevent violations of private security in
person and property and unlawful invasion
of the security of the home by officers of
the law acting under legislative or judicial
sanction and to give remedy against such
usurpation when attempted. (Adams v. New
York, 192 U.S. 858; Alvero v. Dizon, 76 Phil.
637 [1946]). The right to privacy is
an essential condition to the dignity
and happiness and to the peace and
security of every individual, whether it
be of home or of persons and
correspondence. (Tañada and Carreon,
Political Law of the Philippines, Vol. 2, 139
[1962]). The constitutional inviolability of
this great fundamental right against
unreasonable searches and seizures must
be deemed absolute as nothing is closer
to a man's soul than the serenity of his
privacy and the assurance of his
personal security. Any interference
allowable can only be for the best causes
and reasons.119 (emphases supplied)
While the right to life under Article III, Section
1120 guarantees essentially the right to be alive121 -
upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a
guarantee of the secure quality of this life, viz:
"The life to which each person has a right is not a
life lived in fear that his person and property may
be unreasonably violated by a powerful ruler.
Rather, it is a life lived with the assurance that the
government he established and consented to, will
protect the security of his person and property. The
ideal of security in life and property... pervades the
whole history of man. It touches every aspect of
man's existence."122 In a broad sense, the right to
security of person "emanates in a person's legal
and uninterrupted enjoyment of his life, his limbs,
his body, his health, and his reputation. It includes
the right to exist, and the right to enjoyment of life
while existing, and it is invaded not only by a
deprivation of life but also of those things which
are necessary to the enjoyment of life according to
the nature, temperament, and lawful desires of the
individual."123
A closer look at the right to security of person
would yield various permutations of the exercise of
this right.
First, the right to security of person is
"freedom from fear." In its "whereas" clauses,
the Universal Declaration of Human
Rights (UDHR) enunciates that "a world in which
human beings shall enjoy freedom of speech and
belief and freedom from fear and want has been
proclaimed as the highest aspiration of the
common people." (emphasis supplied) Some
scholars postulate that "freedom from fear" is not
only an aspirational principle, but essentially an
individual international human right.124 It is the
"right to security of person" as the word "security"
itself means "freedom from fear."125 Article 3 of the
UDHR provides, viz:
Everyone has the right to life, liberty
and security of person.126 (emphasis
supplied)
In furtherance of this right declared in the UDHR,
Article 9(1) of the International Covenant on
Civil and Political Rights (ICCPR) also provides
for the right to security of person, viz:
1. Everyone has the right to liberty
and security of person. No one shall be
subjected to arbitrary arrest or detention.
No one shall be deprived of his liberty
except on such grounds and in accordance
with such procedure as are established by
law. (emphasis supplied)
The Philippines is a signatory to both the UDHR
and the ICCPR.
In the context of Section 1 of the Amparo Rule,
"freedom from fear" is the right and any threat to
the rights to life, liberty or security is
the actionable wrong. Fear is a state of mind, a
reaction; threat is a stimulus, a cause of action.
Fear caused by the same stimulus can range from
being baseless to well-founded as people react
differently. The degree of fear can vary from one
person to another with the variation of the
prolificacy of their imagination, strength of
character or past experience with the stimulus.
Thus, in the Amparo context, it is more correct to
say that the "right to security" is actually
the "freedom from threat." Viewed in this light,
the "threatened with violation" Clause in the latter
part of Section 1 of the Amparo Rule is a form of
violation of the right to security mentioned in the
earlier part of the provision.127
Second, the right to security of person is a
guarantee of bodily and psychological
integrity or security. Article III, Section II of the
1987 Constitution guarantees that, as a general
rule, one's body cannot be searched or invaded
without a search warrant.128 Physical injuries
inflicted in the context of extralegal killings and
enforced disappearances constitute more than a
search or invasion of the body. It may constitute
dismemberment, physical disabilities, and painful
physical intrusion. As the degree of physical injury
increases, the danger to life itself escalates.
Notably, in criminal law, physical injuries constitute
a crime against persons because they are an
affront to the bodily integrity or security of a
person.129
Physical torture, force, and violence are a severe
invasion of bodily integrity. When employed to
vitiate the free will such as to force the victim to
admit, reveal or fabricate incriminating information,
it constitutes an invasion of both bodily and
psychological integrity as the dignity of the human
person includes the exercise of free will. Article III,
Section 12 of the 1987 Constitution more
specifically proscribes bodily and psychological
invasion, viz:
(2) No torture, force, violence, threat or
intimidation, or any other means which
vitiate the free will shall be used against
him (any person under investigation for the
commission of an offense). Secret detention
places, solitary, incommunicado or other
similar forms of detention are prohibited.
Parenthetically, under this provision, threat and
intimidation that vitiate the free will - although not
involving invasion of bodily integrity - nevertheless
constitute a violation of the right to security in the
sense of "freedom from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from
dehumanizing abuses of persons under
investigation for the commission of an offense.
Victims of enforced disappearances who are not
even under such investigation should all the more
be protected from these degradations.
An overture to an interpretation of the right to
security of person as a right against torture was
made by the European Court of Human Rights
(ECHR) in the recent case of Popov v.
Russia.130 In this case, the claimant, who was
lawfully detained, alleged that the state authorities
had physically abused him in prison, thereby
violating his right to security of person. Article 5(1)
of the European Convention on Human Rights
provides, viz: "Everyone has the right to liberty and
security of person. No one shall be deprived of his
liberty save in the following cases and in
accordance with a procedure prescribed by law ..."
(emphases supplied) Article 3, on the other hand,
provides that "(n)o one shall be subjected to
torture or to inhuman or degrading treatment or
punishment." Although the application failed on the
facts as the alleged ill-treatment was found
baseless, the ECHR relied heavily on the concept of
security in holding, viz:
...the applicant did not bring his allegations
to the attention of domestic authorities at
the time when they could reasonably have
been expected to take measures in order to
ensure his security and to investigate the
circumstances in question.
xxx xxx xxx
... the authorities failed to ensure
his security in custody or to comply with
the procedural obligation under Art.3 to
conduct an effective investigation into his
allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of
Discrimination against Women has also made a
statement that the protection of the bodily integrity
of women may also be related to the right to
security and liberty, viz:
...gender-based violence which impairs or
nullifies the enjoyment by women of human
rights and fundamental freedoms under
general international law or under specific
human rights conventions is discrimination
within the meaning of article 1 of the
Convention (on the Elimination of All Forms
of Discrimination Against Women). These
rights and freedoms include . . . the right to
liberty and security of person.132
Third, the right to security of person is a
guarantee of protection of one's rights by the
government. In the context of the writ
of Amparo, this right is built into the guarantees
of the right to life and liberty under Article III,
Section 1 of the 1987 Constitution and the right
to security of person (as freedom from threat
and guarantee of bodily and psychological integrity)
under Article III, Section 2. The right to security of
person in this third sense is a corollary of the policy
that the State "guarantees full respect for human
rights" under Article II, Section 11 of the 1987
Constitution.133 As the government is the chief
guarantor of order and security, the Constitutional
guarantee of the rights to life, liberty and security
of person is rendered ineffective if government
does not afford protection to these rights especially
when they are under threat. Protection includes
conducting effective investigations, organization of
the government apparatus to extend protection to
victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their
families, and bringing offenders to the bar of
justice. The Inter-American Court of Human Rights
stressed the importance of investigation in
the Velasquez Rodriguez Case,134 viz:
(The duty to investigate) must be
undertaken in a serious manner and
not as a mere formality preordained to
be ineffective. An investigation must have
an objective and be assumed by the
State as its own legal duty, not as a
step taken by private interests that
depends upon the initiative of the
victim or his family or upon their offer of
proof, without an effective search for the
truth by the government.135
This third sense of the right to security of person as
a guarantee of government protection has been
interpreted by the United Nations' Human Rights
Committee136 in not a few cases involving Article
9137 of the ICCPR. While the right to security of
person appears in conjunction with the right to
liberty under Article 9, the Committee has ruled
that the right to security of person can exist
independently of the right to liberty. In other
words, there need not necessarily be a deprivation
of liberty for the right to security of person to be
invoked. In Delgado Paez v. Colombia,138 a case
involving death threats to a religion teacher at a
secondary school in Leticia, Colombia, whose social
views differed from those of the Apostolic Prefect
of Leticia, the Committee held, viz:
The first sentence of article 9 does not
stand as a separate paragraph. Its location
as a part of paragraph one could lead to the
view that the right to security arises only in
the context of arrest and detention. The
travaux préparatoires indicate that the
discussions of the first sentence did indeed
focus on matters dealt with in the other
provisions of article 9. The Universal
Declaration of Human Rights, in article
3, refers to the right to life, the right
to liberty and the right to security of
the person. These elements have been
dealt with in separate clauses in the
Covenant. Although in the Covenant
the only reference to the right of
security of person is to be found in
article 9, there is no evidence that it
was intended to narrow the concept of
the right to security only to situations
of formal deprivation of liberty. At the
same time, States parties have
undertaken to guarantee the rights
enshrined in the Covenant. It cannot
be the case that, as a matter of law,
States can ignore known threats to the
life of persons under their jurisdiction,
just because that he or she is not
arrested or otherwise detained. States
parties are under an obligation to take
reasonable and appropriate measures
to protect them. An interpretation of
article 9 which would allow a State
party to ignore threats to the personal
security of non-detained persons
within its jurisdiction would render
totally ineffective the guarantees of
the Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v.
Zambia,140 which involved a political activist and
prisoner of conscience who continued to be
intimidated, harassed, and restricted in his
movements following his release from detention. In
a catena of cases, the ruling of the Committee was
of a similar import: Bahamonde v. Equatorial
Guinea,141 involving discrimination, intimidation
and persecution of opponents of the ruling party in
that state; Tshishimbi v. Zaire,142 involving the
abduction of the complainant's husband who was a
supporter of democratic reform in Zaire; Dias v.
Angola,143 involving the murder of the
complainant's partner and the harassment he
(complainant) suffered because of his
investigation of the murder; and Chongwe v.
Zambia,144 involving an assassination attempt on
the chairman of an opposition alliance.
Similarly, the European Court of Human Rights
(ECHR) has interpreted the "right to security" not
only as prohibiting the State from arbitrarily
depriving liberty, but imposing a positive duty on
the State to afford protection of the right to
liberty.145 The ECHR interpreted the "right to
security of person" under Article 5(1) of the
European Convention of Human Rights in the
leading case on disappearance of persons, Kurt v.
Turkey.146 In this case, the claimant's son had
been arrested by state authorities and had not
been seen since. The family's requests for
information and investigation regarding his
whereabouts proved futile. The claimant suggested
that this was a violation of her son's right to
security of person. The ECHR ruled, viz:
... any deprivation of liberty must not only
have been effected in conformity with the
substantive and procedural rules of national
law but must equally be in keeping with the
very purpose of Article 5, namely to protect
the individual from arbitrariness... Having
assumed control over that individual it is
incumbent on the authorities to account for
his or her whereabouts. For this
reason, Article 5 must be seen as
requiring the authorities to take
effective measures to safeguard
against the risk of disappearance and
to conduct a prompt effective
investigation into an arguable claim
that a person has been taken into
custody and has not been seen
since.147 (emphasis supplied)
Applying the foregoing concept of the right to
security of person to the case at bar, we now
determine whether there is a continuing violation of
respondents' right to security.
First, the violation of the right to security as
freedom from threat to respondents' life,
liberty and security.
While respondents were detained, they were
threatened that if they escaped, their families,
including them, would be killed. In Raymond's
narration, he was tortured and poured with
gasoline after he was caught the first time he
attempted to escape from Fort Magsaysay. A call
from a certain "Mam," who wanted to see him
before he was killed, spared him.
This time, respondents have finally escaped. The
condition of the threat to be killed has come to
pass. It should be stressed that they are now free
from captivity not because they were released by
virtue of a lawful order or voluntarily freed by their
abductors. It ought to be recalled that towards the
end of their ordeal, sometime in June 2007 when
respondents were detained in a camp in Limay,
Bataan, respondents' captors even told them that
they were still deciding whether they should be
executed. Respondent Raymond Manalo attested in
his affidavit, viz:
Kinaumagahan, naka-kadena pa kami.
Tinanggal ang mga kadena mga 3 o 4 na
araw pagkalipas. Sinabi sa amin na kaya
kami nakakadena ay dahil
pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.148
The possibility of respondents being executed
stared them in the eye while they were in
detention. With their escape, this continuing threat
to their life is apparent, moreso now that they have
surfaced and implicated specific officers in the
military not only in their own abduction and torture,
but also in those of other persons known to have
disappeared such as Sherlyn Cadapan, Karen
Empeño, and Manuel Merino, among others.
Understandably, since their escape, respondents
have been under concealment and protection by
private citizens because of the threat to their life,
liberty and security. The threat vitiates their free
will as they are forced to limit their movements or
activities.149 Precisely because respondents are
being shielded from the perpetrators of their
abduction, they cannot be expected to show
evidence of overt acts of threat such as face-to-
face intimidation or written threats to their life,
liberty and security. Nonetheless, the
circumstances of respondents' abduction,
detention, torture and escape reasonably support a
conclusion that there is an apparent threat that
they will again be abducted, tortured, and this
time, even executed. These constitute threats to
their liberty, security, and life, actionable through a
petition for a writ of Amparo.
Next, the violation of the right to security as
protection by the government. Apart from the
failure of military elements to provide protection to
respondents by themselves perpetrating the
abduction, detention, and torture, they also
miserably failed in conducting an effective
investigation of respondents' abduction as revealed
by the testimony and investigation report of
petitioners' own witness, Lt. Col. Ruben Jimenez,
Provost Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez
was very limited, superficial, and one-sided. He
merely relied on the Sworn Statements of the six
implicated members of the CAFGU and civilians
whom he met in the investigation for the first time.
He was present at the investigation when his
subordinate Lingad was taking the sworn
statements, but he did not propound a single
question to ascertain the veracity of their
statements or their credibility. He did not call for
other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors
of the respondents.
In his affidavit, petitioner Secretary of National
Defense attested that in a Memorandum Directive
dated October 31, 2007, he issued a policy
directive addressed to the AFP Chief of Staff, that
the AFP should adopt rules of action in the event
the writ of Amparo is issued by a competent court
against any members of the AFP, which should
essentially include verification of the identity of the
aggrieved party; recovery and preservation of
relevant evidence; identification of witnesses and
securing statements from them; determination of
the cause, manner, location and time of death or
disappearance; identification and apprehension of
the person or persons involved in the death or
disappearance; and bringing of the suspected
offenders before a competent court.150 Petitioner
AFP Chief of Staff also submitted his own affidavit
attesting that he received the above directive of
respondent Secretary of National Defense and that
acting on this directive, he immediately caused to
be issued a directive to the units of the AFP for the
purpose of establishing the circumstances of the
alleged disappearance and the recent reappearance
of the respondents, and undertook to provide
results of the investigations to respondents.151 To
this day, however, almost a year after the policy
directive was issued by petitioner Secretary of
National Defense on October 31, 2007,
respondents have not been furnished the results of
the investigation which they now seek through the
instant petition for a writ of Amparo.
Under these circumstances, there is substantial
evidence to warrant the conclusion that there is a
violation of respondents' right to security as a
guarantee of protection by the government.
In sum, we conclude that respondents' right to
security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of
person. Their right to security as a guarantee of
protection by the government is likewise violated
by the ineffective investigation and protection on
the part of the military.
Finally, we come to the reliefs granted by the
Court of Appeals, which petitioners question.
First, that petitioners furnish respondents all
official and unofficial reports of the
investigation undertaken in connection with their
case, except those already in file with the court.
Second, that petitioners confirm in writing the
present places of official assignment of
M/Sgt. Hilario aka Rollie Castillo and Donald
Caigas.
Third, that petitioners cause to be produced to the
Court of Appeals all medical reports, records
and charts, and reports of any treatment
given or recommended and medicines
prescribed, if any, to the Manalo brothers, to
include a list of medical personnel (military
and civilian) who attended to them from
February 14, 2006 until August 12, 2007.
With respect to the first and second reliefs,
petitioners argue that the production order sought
by respondents partakes of the characteristics of a
search warrant. Thus, they claim that the requisites
for the issuance of a search warrant must be
complied with prior to the grant of the production
order, namely: (1) the application must be under
oath or affirmation; (2) the search warrant must
particularly describe the place to be searched and
the things to be seized; (3) there exists probable
cause with one specific offense; and (4) the
probable cause must be personally determined by
the judge after examination under oath or
affirmation of the complainant and the witnesses
he may produce.152 In the case at bar, however,
petitioners point out that other than the bare, self-
serving and vague allegations made by respondent
Raymond Manalo in his unverified declaration and
affidavit, the documents respondents seek to be
produced are only mentioned generally by name,
with no other supporting details. They also argue
that the relevancy of the documents to be
produced must be apparent, but this is not true in
the present case as the involvement of petitioners
in the abduction has not been shown.
Petitioners' arguments do not hold water. The
production order under the Amparo Rule should not
be confused with a search warrant for law
enforcement under Article III, Section 2 of the
1987 Constitution. This Constitutional provision is a
protection of the people from the unreasonable
intrusion of the government, not a protection of the
government from the demand of the people such
as respondents.
Instead, the Amparo production order may be
likened to the production of documents or things
under Section 1, Rule 27 of the Rules of Civil
Procedure which provides in relevant part, viz:
Section 1. Motion for production or
inspection order.
Upon motion of any party showing
good cause therefor, the court in
which an action is pending may (a)
order any party to produce and
permit the inspection and copying or
photographing, by or on behalf of
the moving party, of any designated
documents, papers, books of
accounts, letters, photographs,
objects or tangible things, not
privileged, which constitute or
contain evidence material to any
matter involved in the action and
which are in his possession, custody
or control...
In Material Distributors (Phil.) Inc. v. Judge
Natividad,153 the respondent judge, under
authority of Rule 27, issued a subpoena duces
tecum for the production and inspection of among
others, the books and papers of Material
Distributors (Phil.) Inc. The company questioned
the issuance of the subpoena on the ground that it
violated the search and seizure clause. The Court
struck down the argument and held that
the subpoena pertained to a civil procedure that
"cannot be identified or confused with
unreasonable searches prohibited by the
Constitution..."
Moreover, in his affidavit, petitioner AFP Chief of
Staff himself undertook "to provide results of the
investigations conducted or to be conducted by the
concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose
favor the Writ of Amparo has been sought for as
soon as the same has been furnished Higher
headquarters."
With respect to the second and third reliefs,
petitioners assert that the disclosure of the present
places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, as well as the
submission of a list of medical personnel, is
irrelevant, improper, immaterial, and unnecessary
in the resolution of the petition for a writ
of Amparo. They add that it will unnecessarily
compromise and jeopardize the exercise of official
functions and duties of military officers and even
unwittingly and unnecessarily expose them to
threat of personal injury or even death.
On the contrary, the disclosure of the present
places of assignment of M/Sgt. Hilario aka Rollie
Castillo and Donald Caigas, whom respondents
both directly implicated as perpetrators behind their
abduction and detention, is relevant in ensuring the
safety of respondents by avoiding their areas of
territorial jurisdiction. Such disclosure would also
help ensure that these military officers can be
served with notices and court processes in relation
to any investigation and action for violation of the
respondents' rights. The list of medical personnel is
also relevant in securing information to create the
medical history of respondents and make
appropriate medical interventions, when applicable
and necessary.
In blatant violation of our hard-won guarantees to
life, liberty and security, these rights are snuffed
out from victims of extralegal killings and enforced
disappearances. The writ of Amparo is a tool that
gives voice to preys of silent guns and prisoners
behind secret walls.
WHEREFORE, premises considered, the petition
is DISMISSED. The Decision of the Court of
Appeals dated December 26, 2007 is affirmed.
SO ORDERED.
G.R. No. 182498               December 3, 2009
GEN. AVELINO I. RAZON, JR., Chief, Philippine
National Police (PNP); Police Chief
Superintendent RAUL CASTAÑEDA, Chief,
Criminal Investigation and Detection Group
(CIDG); Police Senior Superintendent
LEONARDO A. ESPINA, Chief, Police Anti-Crime
and Emergency Response (PACER); and GEN.
JOEL R. GOLTIAO, Regional Director of ARMM,
PNP, Petitioners,
vs.
MARY JEAN B. TAGITIS, herein represented by
ATTY. FELIPE P. ARCILLA, JR., Attorney-in-
Fact, Respondent.
DECISION
BRION, J.:
We review in this petition for review on certiorari1 the
decision dated March 7, 2008 of the Court of Appeals
(CA) in C.A-G.R. AMPARO No. 00009. 2 This CA
decision confirmed the enforced disappearance of
Engineer Morced N. Tagitis (Tagitis) and granted the
Writ of Amparo at the petition of his wife, Mary Jean
B. Tagitis (respondent). The dispositive portion of the
CA decision reads:
WHEREFORE, premises considered, petition is hereby
GRANTED. The Court hereby FINDS that this is an
"enforced disappearance" within the meaning of the
United Nations instruments, as used in the Amparo
Rules. The privileges of the writ of amparo are hereby
extended to Engr. Morced Tagitis.
Consequently: (1) respondent GEN. EDGARDO M.
DOROMAL, Chief, Criminal Investigation and
Detention Group (CIDG) who should order COL. JOSE
VOLPANE PANTE, CIDG-9 Chief, Zamboanga City, to
aid him; (2) respondent GEN. AVELINO I. RAZON,
Chief, PNP, who should order his men, namely: (a)
respondent GEN. JOEL GOLTIAO, Regional Director of
ARMM PNP, (b) COL. AHIRON AJIRIM, both head of
TASK FORCE TAGITIS, and (c) respondent SR.
SUPERINTENDENT LEONARDO A. ESPINA, Chief,
Police Anti-Crime and Emergency Response, to aid
him as their superior- are hereby DIRECTED to
exert extraordinary diligence and efforts, not only to
protect the life, liberty and security of Engr. Morced
Tagitis, but also to extend the privileges of the writ of
amparo to Engr. Morced Tagitis and his family, and to
submit a monthly report of their actions to this Court,
as a way of PERIODIC REVIEW to enable this Court to
monitor the action of respondents.
This amparo case is hereby DISMISSED as to
respondent LT. GEN. ALEXANDER YANO,
Commanding General, Philippine Army, and as to
respondent GEN. RUBEN RAFAEL, Chief Anti-Terror
Task Force Comet, Zamboanga City, both being with
the military, which is a separate and distinct
organization from the police and the CIDG, in terms
of operations, chain of command and budget.
This Decision reflects the nature of the Writ of
Amparo – a protective remedy against violations or
threats of violation against the rights to life, liberty
and security.3 It embodies, as a remedy, the court’s
directive to police agencies to undertake specified
courses of action to address the disappearance of an
individual, in this case, Engr. Morced N. Tagitis. It
does not determine guilt nor pinpoint criminal
culpability for the disappearance; rather, it determines
responsibility, or at least accountability, for the
enforced disappearance for purposes of imposing the
appropriate remedies to address the disappearance.
Responsibility refers to the extent the actors have
been established by substantial evidence to have
participated in whatever way, by action or omission,
in an enforced disappearance, as a measure of the
remedies this Court shall craft, among them, the
directive to file the appropriate criminal and civil cases
against the responsible parties in the proper courts.
Accountability, on the other hand, refers to the
measure of remedies that should be addressed to
those who exhibited involvement in the enforced
disappearance without bringing the level of their
complicity to the level of responsibility defined above;
or who are imputed with knowledge relating to the
enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to
discharge, the burden of extraordinary diligence in the
investigation of the enforced disappearance. In all
these cases, the issuance of the Writ of Amparo is
justified by our primary goal of addressing the
disappearance, so that the life of the victim is
preserved and his liberty and security are restored.
We highlight this nature of a Writ of Amparo case at
the outset to stress that the unique situations that call
for the issuance of the writ, as well as the
considerations and measures necessary to address
these situations, may not at all be the same as the
standard measures and procedures in ordinary court
actions and proceedings. In this sense, the Rule on
the Writ of Amparo4 (Amparo Rule) issued by this
Court is unique. The Amparo Rule should be read,
too, as a work in progress, as its directions and finer
points remain to evolve through time and
jurisprudence and through the substantive laws that
Congress may promulgate.
THE FACTUAL ANTECEDENTS
The background facts, based on the petition and the
records of the case, are summarized below.
The established facts show that Tagitis, a consultant
for the World Bank and the Senior Honorary
Counselor for the Islamic Development Bank (IDB)
Scholarship Programme, was last seen in Jolo, Sulu.
Together with Arsimin Kunnong (Kunnong), an IDB
scholar, Tagitis arrived in Jolo by boat in the early
morning of October 31, 2007 from a seminar in
Zamboanga City. They immediately checked-in at ASY
Pension House. Tagitis asked Kunnong to buy him a
boat ticket for his return trip the following day to
Zamboanga. When Kunnong returned from this
errand, Tagitis was no longer around.5 The
receptionist related that Tagitis went out to buy food
at around 12:30 in the afternoon and even left his
room key with the desk.6 Kunnong looked for Tagitis
and even sent a text message to the latter’s Manila-
based secretary who did not know of Tagitis’
whereabouts and activities either; she advised
Kunnong to simply wait.7
On November 4, 2007, Kunnong and Muhammad
Abdulnazeir N. Matli, a UP professor of Muslim studies
and Tagitis’ fellow student counselor at the IDB,
reported Tagitis’ disappearance to the Jolo Police
Station.8 On November 7, 2007, Kunnong executed a
sworn affidavit attesting to what he knew of the
circumstances surrounding Tagitis’ disappearance.9
More than a month later (on December 28, 2007), the
respondent filed a Petition for the Writ of Amparo
(petition) with the CA through her Attorney-in-Fact,
Atty. Felipe P. Arcilla.10 The petition was directed
against Lt. Gen. Alexander Yano, Commanding
General, Philippine Army; Gen. Avelino I. Razon,
Chief, Philippine National Police (PNP); Gen. Edgardo
M. Doromal, Chief, Criminal Investigation and
Detention Group (CIDG); Sr. Supt. Leonardo A.
Espina, Chief, Police Anti-Crime and Emergency
Response; Gen. Joel Goltiao, Regional Director,
ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror
Task Force Comet [collectively referred to as
petitioners]. After reciting Tagitis’ personal
circumstances and the facts outlined above, the
petition went on to state:
xxxx
7. Soon after the student left the room, Engr. Tagitis
went out of the pension house to take his early lunch
but while out on the street, a couple of burly men
believed to be police intelligence operatives, forcibly
took him and boarded the latter on a motor vehicle
then sped away without the knowledge of his student,
Arsimin Kunnong;
8. As instructed, in the late afternoon of the same
day, Kunnong returned to the pension house, and
was surprised to find out that subject Engr. Tagitis
cannot [sic] be contacted by phone and was not also
around and his room was closed and locked;
9. Kunnong requested for the key from the desk of
the pension house who [sic] assisted him to open the
room of Engr. Tagitis, where they discovered that the
personal belongings of Engr. Tagitis, including cell
phones, documents and other personal belongings
were all intact inside the room;
10. When Kunnong could not locate Engr. Tagitis, the
former sought the help of another IDB scholar and
reported the matter to the local police agency;
11. Arsimin Kunnong including his friends and
companions in Jolo, exerted efforts in trying to locate
the whereabouts of Engr. Tagitis and when he
reported the matter to the police authorities in Jolo,
he was immediately given a ready answer that Engr.
Tagitis could have been abducted by the Abu Sayyaf
group and other groups known to be fighting against
the government;
12. Being scared with [sic] these suggestions and
insinuations of the police officers, Kunnong reported
the matter to the [respondent, wife of Engr. Tagitis]
by phone and other responsible officers and
coordinators of the IDB Scholarship Programme in the
Philippines, who alerted the office of the Governor of
ARMM who was then preparing to attend the OIC
meeting in Jeddah, Saudi Arabia;
13. [Respondent], on the other hand, approached
some of her co-employees with the Land Bank in
Digos branch, Digos City, Davao del Sur who likewise
sought help from some of their friends in the military
who could help them find/locate the whereabouts of
her husband;
14. All of these efforts of the [respondent] did not
produce any positive results except the information
from persons in the military who do not want to be
identified that Engr. Tagitis is in the hands of the
uniformed men;
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody
of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his
will in an earnest attempt of the police to involve and
connect Engr. Tagitis with the different terrorist
groups;
xxxx
17. [Respondent] filed her complaint with the PNP
Police Station in the ARMM in Cotobato and in Jolo, as
suggested by her friends, seeking their help to find
her husband, but [respondent’s] request and
pleadings failed to produce any positive results;
18. Instead of helping the [respondent], she [sic] was
told of an intriguing tale by the police that her
husband, subject of the petition, was not missing but
was with another woman having good time
somewhere, which is a clear indication of the
[petitioners’] refusal to help and provide police
assistance in locating her missing husband;
19. The continued failure and refusal of the
[petitioners] to release and/or turn-over subject Engr.
Tagitis to his family or even to provide truthful
information to [the respondent] of the subject’s
whereabouts, and/or allow [the respondent] to visit
her husband Engr. Morced Tagitis, caused so much
sleepless nights and serious anxieties;
20. Lately, [the respondent] was again advised by
one of the [petitioners] to go to the ARMM Police
Headquarters again in Cotobato City and also to the
different Police Headquarters including [those] in
Davao City, in Zamboanga City, in Jolo, and in Camp
Crame, Quezon City, and all these places have been
visited by the [respondent] in search for her husband,
which entailed expenses for her trips to these places
thereby resorting her to borrowings and beggings
[sic] for financial help from friends and relatives only
to try complying [sic] to the different suggestions of
these police officers, despite of which, her efforts
produced no positive results up to the present time;
21. In fact at times, some police officers, who
[sympathized with] the sufferings undergone by the
[respondent], informed her that they are not the
proper persons that she should approach, but assured
her not to worry because her husband is [sic] in good
hands;
22. The unexplained uncooperative behavior of the
[petitioners] to the [respondent’s] request for help
and failure and refusal of the [petitioners] to extend
the needed help, support and assistance in locating
the whereabouts of Engr. Tagitis who had been
declared missing since October 30, 2007 which is
almost two (2) months now, clearly indicates that the
[petitioners] are actually in physical possession and
custody of [respondent’s] husband, Engr. Tagitis;
xxxx
25. [The respondent] has exhausted all administrative
avenues and remedies but to no avail, and under the
circumstances, [the respondent] has no other plain,
speedy and adequate remedy to protect and get the
release of subject Engr. Morced Tagitis from the
illegal clutches of the [petitioners], their intelligence
operatives and the like which are in total violation of
the subject’s human and constitutional rights, except
the issuance of a WRIT OF AMPARO. [Emphasis
supplied]
On the same day the petition was filed, the CA
immediately issued the Writ of Amparo, set the case
for hearing on January 7, 2008, and directed the
petitioners to file their verified return within seventy-
two (72) hours from service of the writ.11
In their verified Return filed during the hearing of
January 27, 2008, the petitioners denied any
involvement in or knowledge of Tagitis’ alleged
abduction. They argued that the allegations of the
petition were incomplete and did not constitute a
cause of action against them; were baseless, or at
best speculative; and were merely based on hearsay
evidence. 12
The affidavit of PNP Chief Gen. Avelino I. Razon,
attached to the Return, stated that: he did not have
any personal knowledge of, or any participation in,
the alleged disappearance; that he had been
designated by President Gloria Macapagal Arroyo as
the head of a special body called TASK FORCE USIG,
to address concerns about extralegal killings and
enforced disappearances; the Task Force, inter alia,
coordinated with the investigators and local police,
held case conferences, rendered legal advice in
connection to these cases; and gave the following
summary:13
xxxx
4.
5. On this particular case, the Philippine National
a) On November 5, 2007, the Regional
Police exhausted all possible efforts, steps and actions
Director, Police Regional Office ARMM
available under the circumstances and continuously
submitted a report on the alleged
search and investigate [sic] the instant case. This
disappearance of one Engr. Morced Tagitis.
immense mandate, however, necessitates the
According to the said report, the victim
indispensable role of the citizenry, as the PNP cannot
checked-in at ASY Pension House on October
30, 2007 at about 6:00 in the morning and
then roamed around Jolo, Sulu with an
unidentified companion. It was only after a
few days when the said victim did not return
that the matter was reported to Jolo MPS.
Afterwards, elements of Sulu PPO conducted a
thorough investigation to trace and locate the
whereabouts of the said missing person, but
to no avail. The said PPO is still conducting
investigation that will lead to the immediate
findings of the whereabouts of the person.
b) Likewise, the Regional Chief, 9RCIDU
submitted a Progress Report to the Director,
CIDG. The said report stated among others
that: subject person attended an Education
Development Seminar set on October 28,
2007 conducted at Ateneo de Zamboanga,
Zamboanga City together with a Prof. Matli.
On October 30, 2007, at around 5:00 o’clock
in the morning, Engr. Tagitis reportedly
arrived at Jolo Sulu wharf aboard M/V Bounty
Cruise, he was then billeted at ASY Pension
House. At about 6:15 o’clock in the morning
of the same date, he instructed his student to
purchase a fast craft ticket bound for
Zamboanga City and will depart from Jolo,
Sulu on October 31, 2007. That on or about
10:00 o’clock in the morning, Engr. Tagitis left
the premises of ASY Pension House as stated
by the cashier of the said pension house.
Later in the afternoon, the student instructed
to purchase the ticket arrived at the pension
house and waited for Engr. Tagitis, but the
latter did not return. On its part, the elements
of 9RCIDU is now conducting a continuous
case build up and information gathering to
locate the whereabouts of Engr. Tagitis.
c) That the Director, CIDG directed the
conduct of the search in all divisions of the
CIDG to find Engr. Tagitis who was allegedly
abducted or illegally detained by covert CIDG-
PNP Intelligence Operatives since October 30,
2007, but after diligent and thorough search,
records show that no such person is being
detained in CIDG or any of its department or
divisions.
stand alone without the cooperation of the victims
and witnesses to identify the perpetrators to bring
them before the bar of justice and secure their
conviction in court.
The petitioner PNP-CIDG Chief, Gen. Edgardo M.
Doromal, submitted as well his affidavit, also attached
to the Return of the Writ, attesting that upon receipt
of the Writ of Amparo, he caused the following:14
xxxx
That immediately upon receipt on December 29, 2007
of the Resolution of the Honorable Special Fourth
Division of the Court of Appeals, I immediately
directed the Investigation Division of this Group
[CIDG] to conduct urgent investigation on the alleged
enforced disappearance of Engineer Morced Tagitis.
That based on record, Engr. Morced N. Tagitis
attended an Education Development Seminar on
October 28, 2007 at Ateneo de Zamboanga at
Zamboanga City together with Prof. Abdulnasser
Matli. On October 30, 2007, at around six o’clock in
the morning he arrived at Jolo, Sulu. He was assisted
by his student identified as Arsimin Kunnong of the
Islamic Development Bank who was also one of the
participants of the said seminar. He checked in at ASY
pension house located [sic] Kakuyagan, Patikul, Sulu
on October 30, 2007 with [sic] unidentified
companion. At around six o’clock in the morning of
even date, Engr. Tagitis instructed his student to
purchase a fast craft ticket for Zamboanga City. In
the afternoon of the same date, Kunnong arrived at
the pension house carrying the ticket he purchased
for Engr. Tagitis, but the latter was nowhere to be
found anymore. Kunnong immediately informed Prof.
Abdulnasser Matli who reported the incident to the
police. The CIDG is not involved in the disappearance
of Engr. Morced Tagitis to make out a case of an
enforced disappearance which presupposes a direct or
indirect involvement of the government.
That herein [petitioner] searched all divisions and
departments for a person named Engr. Morced N.
Tagitis, who was allegedly abducted or illegally
detained by covert CIDG-PNP Intelligence Operatives
since October 30, 2007 and after a diligent and
thorough research records show that no such person
is being detained in CIDG or any of its department or
divisions.
That nevertheless, in order to determine the
circumstances surrounding Engr. Morced Tagitis [sic]
alleged enforced disappearance, the undersigned had
undertaken immediate investigation and will pursue
investigations up to its full completion in order to aid
in the prosecution of the person or persons
responsible therefore.
Likewise attached to the Return of the Writ was PNP-
PACER15 Chief PS Supt. Leonardo A. Espina’s affidavit
which alleged that:16
xxxx
That, I and our men and women in PACER
vehemently deny any participation in the alleged
abduction or illegally [sic] detention of ENGR.
MORCED N. TAGITS on October 30, 2007. As a
matter of fact, nowhere in the writ was mentioned
that the alleged abduction was perpetrated by
elements of PACER nor was there any indication that
the alleged abduction or illegal detention of ENGR.
TAGITIS was undertaken jointly by our men and by
the alleged covert CIDG-PNP intelligence operatives
alleged to have abducted or illegally detained ENGR.
TAGITIS.
That I was shocked when I learned that I was
implicated in the alleged disappearance of ENGR.
MORCED in my capacity as the chief PACER [sic]
considering that our office, the Police Anti-Crime and
Emergency Response (PACER), a special task force
created for the purpose of neutralizing or eradicating
kidnap-for-ransom groups which until now continue to
be one of the menace of our society is a respondent
in kidnapping or illegal detention case. Simply put,
our task is to go after kidnappers and charge them in
court and to abduct or illegally detain or kidnap
anyone is anathema to our mission.
That right after I learned of the receipt of the WRIT
OF AMPARO, I directed the Chief of PACER Mindanao
Oriental (PACER-MOR) to conduct pro-active
measures to investigate, locate/search the subject,
identify and apprehend the persons responsible, to
recover and preserve evidence related to the
disappearance of ENGR. MORCED TAGITIS, which
may aid in the prosecution of the person or persons
responsible, to identify witnesses and obtain
statements from them concerning the disappearance
and to determine the cause, manner, location and
time of disappearance as well as any pattern or
practice that may have brought about the
disappearance.
That I further directed the chief of PACER-MOR,
Police Superintendent JOSE ARNALDO BRIONES JR.,
to submit a written report regarding the
disappearance of ENGR. MORCED.
That in compliance with my directive, the chief of
PACER-MOR sent through fax his written report.
That the investigation and measures being
undertaken to locate/search the subject in
coordination with Police Regional Office, Autonomous
Region of Muslim Mindanao (PRO-ARMM) and Jolo
Police Provincial Office (PPO) and other AFP and PNP
units/agencies in the area are ongoing with the
instruction not to leave any stone unturned so to
speak in the investigation until the perpetrators in the
instant case are brought to the bar of justice.
That I have exercised EXTRAORDINARY DILIGENCE
in dealing with the WRIT OF AMPARO just issued.
Finally, the PNP PRO ARMM Regional Director PC
Supt. Joel R. Goltiao (Gen. Goltiao), also submitted
his affidavit detailing the actions that he had taken
upon receipt of the report on Tagitis’ disappearance,
viz:17
xxxx
3) For the record:
1. I am the Regional Director of Police Regional Office
ARMM now and during the time of the incident;
xxxx
4. It is my duty to look into and take appropriate
measures on any cases of reported enforced
disappearances and when they are being alluded to
my office;
5. On November 5, 2007, the Provincial Director of
Sulu Police Provincial Office reported to me through
Radio Message Cite No. SPNP3-1105-07-2007 that on
November 4, 2007 at around 3:30 p.m., a certain
Abdulnasser Matli, an employee of Islamic
Development Bank, appeared before the Office of the
Chief of Police, Jolo Police Station, and reported the
disappearance of Engr. Morced Tagitis, scholarship
coordinator of Islamic Development Bank, Manila;
6. There was no report that Engr. Tagibis was last
seen in the company of or taken by any member of
the Philippine National Police but rather he just
disappeared from ASY Pension House situated at
Kakuyagan Village, Village, Patikul, Sulu, on October
30, 2007, without any trace of forcible abduction or
arrest;
7. The last known instance of communication with
him was when Arsimin Kunnong, a student scholar,
was requested by him to purchase a vessel ticket at
the Office of Weezam Express, however, when the
student returned back to ASY Pension House, he no
longer found Engr. Tagitis there and when he
immediately inquired at the information counter
regarding his whereabouts [sic], the person in charge
in the counter informed him that Engr. Tagitis had left
the premises on October 30, 2007 around 1 o’clock
p.m. and never returned back to his room;
8. Immediately after learning the incident, I called
and directed the Provincial Director of Sulu Police
Provincial Office and other units through phone call
and text messages to conduct investigation [sic] to
determine the whereabouts of the aggrieved party
and the person or persons responsible for the threat,
act or omission, to recover and preserve evidence
related to the disappearance of Engr. Tagitis, to
identify witnesses and obtain statements from them
concerning his disappearance, to determine the cause
and manner of his disappearance, to identify and
apprehend the person or persons involved in the
disappearance so that they shall be brought before a
competent court;
9. Thereafter, through my Chief of the Regional
Investigation and Detection Management Division, I
have caused the following directives:
a) Radio Message Cite No. RIDMD-1122-07-
358 dated November 22, 2007 directing PD
Sulu PPO to conduct joint investigation with
CIDG and CIDU ARMM on the matter;
b) Radio Message Cite No. RIDMD-1128-07-
361 dated November 28, 2007 directing PD
Sulu PPO to expedite compliance to my
previous directive;
c) Memorandum dated December 14, 2007
addressed to PD Sulu PPO reiterating our
series of directives for investigation and
directing him to undertake exhaustive
coordination efforts with the owner of ASY
Pension House and student scholars of IDB in
order to secure corroborative statements
regarding the disappearance and whereabouts
of said personality;
d) Memorandum dated December 24, 2007
addressed to PD Sulu PPO directing him to
maximize efforts to establish clues on the
whereabouts of Engr. Tagitis by seeking the
cooperation of Prof. Abdulnasser Matli and
 Arsimin Kunnong and/or whenever necessary,
for them to voluntarily submit for polygraph
examination with the NBI so as to expunge all
clouds of doubt that they may somehow have
knowledge or idea to his disappearance;
e) Memorandum dated December 27, 2007
addressed to the Regional Chief, Criminal
Investigation and Detection Group, Police
Regional Office 9, Zamboanga City, requesting
assistance to investigate the cause and
unknown disappearance of Engr. Tagitis
considering that it is within their area of
operational jurisdiction;
f) Memorandum from Chief, Intelligence
Division, PRO ARMM dated December 30,
2007 addressed to PD Sulu PPO requiring
them to submit complete investigation report
regarding the case of Engr. Tagitis;
10. In compliance to our directives, PD Sulu PPO has
exerted his [sic] efforts to conduct investigation [sic]
on the matter to determine the whereabouts of Engr.
Tagitis and the circumstances related to his
disappearance and submitted the following:
a) Progress Report dated November 6, 2007
through Radio Message Cite No. SPNP3-1106-
10-2007;
b) Radio Message Cite No. SPIDMS-1205-47-
07 informing this office that they are still
monitoring the whereabouts of Engr. Tagitis;
c) Investigation Report dated December 31,
2007 from the Chief of Police, Jolo Police
Station, Sulu PPO;
11. This incident was properly reported to the PNP
Higher Headquarters as shown in the following:
a) Memorandum dated November 6, 2007
addressed to the Chief, PNP informing him of
the facts of the disappearance and the action
being taken by our office;
b) Memorandum dated November 6, 2007
addressed to the Director, Directorate for
Investigation and Detection Management,
NHQ PNP;
c) Memorandum dated December 30, 2007
addressed to the Director, DIDM;
4) In spite of our exhaustive efforts, the whereabouts
of Engr. Tagitis cannot be determined but our office is
continuously intensifying the conduct of information
gathering, monitoring and coordination for the
immediate solution of the case.
Since the disappearance of Tagistis was practically
admitted and taking note of favorable actions so far
taken on the disappearance, the CA directed Gen.
Goltiao – as the officer in command of the area of
disappearance – to form TASK FORCE TAGITIS.18
Task Force Tagitis
On January 11, 2008, Gen. Goltiao designated PS
Supt. Ahiron Ajirim (PS Supt. Ajirim) to head TASK
FORCE TAGITIS.19 The CA subsequently set three
hearings to monitor whether TASK FORCE TAGITIS
was exerting "extraordinary efforts" in handling the
disappearance of Tagitis.20 As planned, (1) the first
hearing would be to mobilize the CIDG, Zamboanga
City; (2) the second hearing would be to mobilize
intelligence with Abu Sayyaf and ARMM; and (3) the
third hearing would be to mobilize the Chief of Police
of Jolo, Sulu and the Chief of Police of Zamboanga
City and other police operatives.21
In the hearing on January 17, 2008, TASK FORCE
TAGITIS submitted to the CA an intelligence report
from PSL Usman S. Pingay, the Chief of Police of the
Jolo Police Station, stating a possible motive for
Tagitis’ disappearance.22 The intelligence report was
apparently based on the sworn affidavit dated
January 4, 2008 of Muhammad Abdulnazeir N. Matli
(Prof. Matli), Professor of Islamic Studies at the
University of the Philippines and an Honorary Student
Counselor of the IDB Scholarship Program in the
Philippines, who told the Provincial Governor of Sulu
that:23
[Based] on reliable information from the Office of
Muslim Affairs in Manila, Tagitis has reportedly taken
and carried away… more or less Five Million Pesos
(P5,000,000.00) deposited and entrusted to his …
[personal] bank accounts by the Central Office of IDB,
Jeddah, Kingdom of Saudi Arabia, which [was]
intended for the … IDB Scholarship Fund.
In the same hearing, PS Supt. Ajirim testified that
since the CIDG was alleged to be responsible, he
personally went to the CIDG office in Zamboanga City
to conduct an ocular inspection/investigation,
particularly of their detention cells.24 PS Supt. Ajirim
stated that the CIDG, while helping TASK FORCE
TAGITIS investigate the disappearance of Tagitis,
persistently denied any knowledge or complicity in
any abduction.25 He further testified that prior to the
hearing, he had already mobilized and given specific
instructions to their supporting units to perform their
respective tasks; that they even talked to, but failed
to get any lead from the respondent in Jolo. 26 In his
submitted investigation report dated January 16,
2008, PS Supt. Ajirim concluded:27
9. Gleaned from the undersigned inspection and
observation at the Headquarters 9 RCIDU and the
documents at hand, it is my own initial conclusion
that the 9RCIDU and other PNP units in the area had
no participation neither [sic] something to do with
[sic] mysterious disappearance of Engr. Morced
Tagitis last October 30, 2007. Since doubt has been
raised regarding the emolument on the Islamic
Development Bank Scholar program of IDB that was
reportedly deposited in the personal account of Engr.
Tagitis by the IDB central office in Jeddah, Kingdom
of Saudi Arabia. Secondly, it could might [sic] be done
by resentment or sour grape among students who are
applying for the scholar [sic] and were denied which
was allegedly conducted/screened by the subject
being the coordinator of said program.
20. It is also premature to conclude but it does or it
may and [sic] presumed that the motive behind the
disappearance of the subject might be due to the
funds he maliciously spent for his personal interest
and wanted to elude responsibilities from the
institution where he belong as well as to the Islamic
student scholars should the statement of Prof. Matli
be true or there might be a professional jealousy
among them.
xxxx
It is recommended that the Writ of Amparo filed
against the respondents be dropped and dismissed
considering on [sic] the police and military actions in
the area particularly the CIDG are exerting their
efforts and religiously doing their tasked [sic] in the
conduct of its intelligence monitoring and
investigation for the early resolution of this instant
case. But rest assured, our office, in coordination with
other law-enforcement agencies in the area, are
continuously and religiously conducting our
investigation for the resolution of this case.
On February 4, 2008, the CA issued an ALARM
WARNING that Task Force Tagitis did not appear to
be exerting extraordinary efforts in resolving Tagitis’
disappearance on the following grounds:28
(1) This Court FOUND that it was only as late
as January 28, 2008, after the hearing, that
GEN. JOEL GOLTIAO and COL. AHIRON
AJIRIM had requested for clear photographs
when it should have been standard operating
procedure in kidnappings or disappearances
that the first agenda was for the police to
secure clear pictures of the missing person,
Engr. Morced Tagitis, for dissemination to all
parts of the country and to neighboring
countries. It had been three (3) months since
GEN. JOEL GOLTIAO admitted having been
informed on November 5, 2007 of the alleged
abduction of Engr. Morced Tagitis by alleged
bad elements of the CIDG. It had been more
than one (1) month since the Writ of Amparo
had been issued on December 28, 2007. It
had been three (3) weeks when battle
formation was ordered through Task Force
Tagitis, on January 17, 2008. It was only on
January 28, 2008 when the Task Force Tagitis
requested for clear and recent photographs of
the missing person, Engr. Morced Tagitis,
despite the Task Force Tagitis’ claim that they
already had an "all points bulletin", since
November 5, 2007, on the missing person,
Engr. Morced Tagitis. How could the police
look for someone who disappeared if no clear
photograph had been disseminated?
(2) Furthermore, Task Force Tagitis’ COL.
AHIROM AJIRIM informed this Court that
P/Supt KASIM was designated as Col. Ahirom
Ajirim’s replacement in the latter’s official
designated post. Yet, P/Supt KASIM’s
subpoena was returned to this Court
unserved. Since this Court was made to
understand that it was P/Supt KASIM who was
the petitioner’s unofficial source of the military
intelligence information that Engr. Morced
Tagitis was abducted by bad elements of the
CIDG (par. 15 of the Petition), the close
contact between P/Supt KASIM and Col.
Ahirom Ajirim of TASK FORCE TAGITIS should
have ensured the appearance of Col. KASIM in
response to this court’s subpoena and COL.
KASIM could have confirmed the military
intelligence information that bad elements of
the CIDG had abducted Engr. Morced Tagitis.
Testimonies for the Respondent
On January 7, 2008, the respondent, Mary Jean B.
Tagitis, testified on direct examination that she went
to Jolo and Zamboanga in her efforts to locate her
husband. She said that a friend from Zamboanga
holding a high position in the military (whom she did
not then identify) gave her information that allowed
her to "specify" her allegations, "particularly
paragraph 15 of the petition."29 This friend also told
her that her husband "[was] in good hands."30 The
respondent also testified that she sought the
assistance of her former boss in Davao City, Land
Bank Bajada Branch Manager Rudy Salvador, who
told her that "PNP CIDG is holding [her husband],
Engineer Morced Tagitis."31 The respondent recounted
that she went to Camp Katitipan in Davao City where
she met Col. Julasirim Ahadin Kasim (Col. Kasim/Sr.
Supt Kasim) who read to her and her friends (who
were then with her) a "highly confidential report" that
contained the "alleged activities of Engineer Tagitis"
and informed her that her husband was abducted
because "he is under custodial investigation" for being
a liaison for "J.I. or Jema’ah Islamiah."32
On January 17, 2008, the respondent on cross-
examination testified that she is Tagitis’ second wife,
and they have been married for thirteen years; Tagitis
was divorced from his first wife.33 She last
communicated with her husband on October 29, 2007
at around 7:31 p.m. through text messaging; Tagitis
was then on his way to Jolo, Sulu, from Zamboanga
City.34
The respondent narrated that she learned of her
husband’s disappearance on October 30, 2007 when
her stepdaughter, Zaynah Tagitis (Zaynah), informed
her that she had not heard from her father since the
time they arranged to meet in Manila on October 31,
2007.35 The respondent explained that it took her a
few days (or on November 5, 2007) to personally ask
Kunnong to report her husband’s disappearance to
the Jolo Police Station, since she had the impression
that her husband could not communicate with her
because his cellular phone’s battery did not have
enough power, and that he would call her when he
had fully-charged his cellular phone’s battery.36
The respondent also identified the high-ranking
military friend, who gave her the information found in
paragraph 15 of her petition, as Lt. Col. Pedro L.
Ancanan, Jr (Col. Ancanan). She met him in Camp
Karingal, Zamboanga through her boss.37 She also
testified that she was with three other people,
namely, Mrs. Marydel Martin Talbin and her two
friends from Mati City, Davao Oriental, when Col.
Kasim read to them the contents of the "highly
confidential report" at Camp Katitipan, Davao City.
The respondent further narrated that the report
indicated that her husband met with people belonging
to a terrorist group and that he was under custodial
investigation. She then told Col. Kasim that her
husband was a diabetic taking maintenance
medication, and asked that the Colonel relay to the
persons holding him the need to give him his
medication.38
On February 11, 2008, TASK FORCE TAGITIS
submitted two narrative reports,39 signed by the
respondent, detailing her efforts to locate her
husband which led to her meetings with Col. Ancanan
of the Philippine Army and Col. Kasim of the PNP. In
her narrative report concerning her meeting with Col.
Ancanan, the respondent recounted, viz:40
On November 11, 2007, we went to Zamboanga City
with my friend Mrs. Marydel Talbin. Our flight from
Davao City is 9:00 o’clock in the morning; we arrived
at Zamboanga Airport at around 10:00 o’clock. We
[were] fetched by the two staffs of Col. Ancanan. We
immediately proceed [sic] to West Mindanao
Command (WESTMINCOM).
On that same day, we had private conversation with
Col. Ancanan. He interviewed me and got information
about the personal background of Engr. Morced N.
Tagitis. After he gathered all information, he revealed
to us the contents of text messages they got from the
cellular phone of the subject Engr. Tagitis. One of the
very important text messages of Engr. Tagitis sent to
his daughter Zaynah Tagitis was that she was not
allowed to answer any telephone calls in his
condominium unit.
While we were there he did not tell us any
information of the whereabouts of Engr. Tagitis. After
the said meeting with Col. Ancanan, he treated us as
guests to the city. His two staffs accompanied us to
the mall to purchase our plane ticket going back to
Davao City on November 12, 2007.
When we arrived in Davao City on November 12,
2007 at 9:00 in the morning, Col. Ancanan and I were
discussing some points through phone calls. He
assured me that my husband is alive and he’s last
looked [sic] in Talipapao, Jolo, Sulu. Yet I did not
believe his given statements of the whereabouts of
my husband, because I contacted some of my friends
who have access to the groups of MILF, MNLF and
ASG. I called up Col. Ancanan several times begging
to tell me the exact location of my husband and who
held him but he refused.
While I was in Jolo, Sulu on November 30, 2007, I
called him up again because the PNP, Jolo did not
give me any information of the whereabouts of my
husband. Col. Ancanan told me that "Sana ngayon
alam mo na kung saan ang kinalalagyan ng asawa
mo." When I was in Zamboanga, I was thinking of
dropping by the office of Col. Ancanan, but I was
hesitant to pay him a visit for the reason that the
Chief of Police of Jolo told me not to contact any AFP
officials and he promised me that he can solve the
case of my husband (Engr. Tagitis) within nine days.
I appreciate the effort of Col. Ancanan on trying to
solve the case of my husband Engr. Morced Tagitis,
yet failed to do so.
The respondent also narrated her encounter with Col.
Kasim, as follows:41
On November 7, 2007, I went to Land Bank of the
Philippines, Bajada Branch, Davao City to meet Mr.
Rudy Salvador. I told him that my husband, Engineer
Morced Tagitis was presumed to be abducted in Jolo,
Sulu on October 30, 2007. I asked him a favor to
contact his connections in the military in Jolo, Sulu
where the abduction of Engr. Tagitis took place. Mr.
Salvador immediately called up Camp Katitipan
located in Davao City looking for high-ranking official
who can help me gather reliable information behind
the abduction of subject Engineer Tagitis.
On that same day, Mr. Salvador and my friend, Anna
Mendoza, Executive Secretary, accompanied me to
Camp Katitipan to meet Col. Kasim. Mr. Salvador
introduced me to Col. Kasim and we had a short
conversation. And he assured me that he’ll do the
best he can to help me find my husband.
After a few weeks, Mr. Salvador called me up
informing me up informing me that I am to go to
Camp Katitipan to meet Col. Kasim for he has an
urgent, confidential information to reveal.
On November 24, 2007, we went back to Camp
Katitipan with my three friends. That was the time
that Col. Kasim read to us the confidential report that
Engr. Tagitis was allegedly connected [with] different
terrorist [groups], one of which he mentioned in the
report was OMAR PATIK and a certain SANTOS - a
Balik Islam.
It is also said that Engr. Tagitis is carrying boxes of
medicines for the injured terrorists as a supplier.
These are the two information that I can still
remember. It was written in a long bond paper with
PNP Letterhead. It was not shown to us, yet Col.
Kasim was the one who read it for us.
He asked a favor to me that "Please don’t quote my
Name! Because this is a raw report." He assured me
that my husband is alive and he is in the custody of
the military for custodial investigation. I told him to
please take care of my husband because he has
aliments and he recently took insulin for he is a
diabetic patient.
In my petition for writ of amparo, I emphasized the
information that I got from Kasim.
On February 11, 2008, the respondent presented Mrs.
Marydel Martin Talbin (Mrs. Talbin) to corroborate her
testimony regarding her efforts to locate her husband,
in relation particularly with the information she
received from Col. Kasim. Mrs. Talbin testified that
she was with the respondent when she went to
Zamboanga to see Col. Ancanan, and to Davao City at
Camp Katitipan to meet Col. Kasim.42
In Zamboanga, Mrs. Talbin recounted that they met
with Col. Ancanan, who told them that there was a
report and that he showed them a series of text
messages from Tagitis’ cellular phone, which showed
that Tagitis and his daughter would meet in Manila on
October 30, 2007.43
She further narrated that sometime on November 24,
2007, she went with the respondent together with
two other companions, namely, Salvacion Serrano
and Mini Leong, to Camp Katitipan to talk to Col.
Kasim.44 The respondent asked Col. Kasim if he knew
the exact location of Engr. Tagitis. Col. Kasim told
them that Tagitis was in good hands, although he was
not certain whether he was with the PNP or with the
Armed Forces of the Philippines (AFP). She further
recounted that based on the report Col. Kasim read in
their presence, Tagitis was under custodial
investigation because he was being charged with
terrorism; Tagitis in fact had been under surveillance
since January 2007 up to the time he was abducted
when he was seen talking to Omar Patik and a certain
Santos of Bulacan, a "Balik Islam" charged with
terrorism. Col. Kasim also told them that he could not
give a copy of the report because it was a "raw
report."45 She also related that the Col. Kasim did not
tell them exactly where Tagitis was being kept,
although he mentioned Talipapao, Sulu.Prof., lalabas
din yan."50 Prof. Matli also emphasized that despite
what his January 4, 2008 affidavit indicated,51 he
never told PS Supt. Pingay, or made any accusation,
that Tagitis took away money entrusted to him.52 Prof.
Matli confirmed, however, that that he had received
an e-mail report53 from Nuraya Lackian of the Office of
Muslim Affairs in Manila that the IDB was seeking
assistance of the office in locating the funds of IDB
scholars deposited in Tagitis’ personal account.54
On cross-examination by the respondent’s counsel,
Prof. Matli testified that his January 4, 2008 affidavit
was already prepared when PS Supt. Pingay asked
him to sign it.55 Prof Matli clarified that although he
read the affidavit before signing it, he "was not so
much aware of… [its] contents."56
On February 11, 2008, the petitioners presented Col.
Kasim to rebut material portions of the respondent’s
testimony, particularly the allegation that he had
stated that Tagitis was in the custody of either the
military or the PNP.57 Col. Kasim categorically denied
the statements made by the respondent in her
narrative report, specifically: (1) that Tagitis was seen
carrying boxes of medicines as supplier for the injured
terrorists; (2) that Tagitis was under the custody of
the military, since he merely said to the respondent
that "your husband is in good hands" and is "probably
taken cared of by his armed abductors;" and (3) that
Tagitis was under custodial investigation by the
military, the PNP or the CIDG Zamboanga City.58 Col.
Kasim emphasized that the "informal letter" he
received from his informant in Sulu did not indicate
that Tagitis was in the custody of the CIDG.59 He also
stressed that the information he provided to the
respondent was merely a "raw report" sourced from
"barangay intelligence" that still needed confirmation
and "follow-up" as to its veracity.60
On cross-examination, Col. Kasim testified that the
information he gave the respondent was given to him
by his informant, who was a "civilian asset," through
a letter which he considered as "unofficial."61 Col.
Kasim stressed that the letter was only meant for his
"consumption" and not for reading by others.62 He
testified further that he destroyed the letter right after
he read it to the respondent and her companions
because "it was not important to him" and also
because the information it contained had no
importance in relation with the abduction of
Tagitis.63 He explained that he did not keep the letter
because it did not contain any information regarding
the whereabouts of Tagitis and the person(s)
responsible for his abduction.64
In the same hearing on February 11, 2008, the
petitioners also presented Police Senior
Superintendent Jose Volpane Pante (Col. Pante),
Chief of the CIDG-9, to disprove the respondent’s
allegation that Tagitis was in the custody of CIDG-
Zamboanga City.65 Col. Pante clarified that the CIDG
was the "investigative arm" of the PNP, and that the
CIDG "investigates and prosecutes all cases involving
violations in the Revised Penal Code particularly those
considered as heinous crimes."66 Col. Pante further
testified that the allegation that 9 RCIDU personnel
were involved in the disappearance of Tagitis was
baseless, since they did not conduct any operation in
Jolo, Sulu before or after Tagitis’ reported
disappearance.67 Col. Pante added that the four (4)
personnel assigned to the Sulu CIDT had no capability
to conduct any "operation," since they were only
assigned to investigate matters and to monitor the
terrorism situation.68 He denied that his office
conducted any surveillance on Tagitis prior to the
latter’s disappearance.69 Col. Pante further testified
that his investigation of Tagitis’ disappearance was
unsuccessful; the investigation was "still facing a
blank wall" on the whereabouts of Tagitis.70
THE CA RULING
On March 7, 2008, the CA issued its
decision71 confirming that the disappearance of Tagitis
was an "enforced disappearance" under the United
Nations (UN) Declaration on the Protection of All
Persons from Enforced Disappearances.72 The CA
ruled that when military intelligence pinpointed the
investigative arm of the PNP (CIDG) to be involved in
the abduction, the missing-person case qualified as an
enforced disappearance. The conclusion that the
CIDG was involved was based on the respondent’s
testimony, corroborated by her companion, Mrs.
Talbin. The CA noted that the information that the
CIDG, as the police intelligence arm, was involved in
Tagitis’ abduction came from no less than the military
– an independent agency of government. The CA thus
greatly relied on the "raw report" from Col. Kasim’s
asset, pointing to the CIDG’s involvement in Tagitis’
abduction. The CA held that "raw reports" from an
"asset" carried "great weight" in the intelligence
world. It also labeled as "suspect" Col. Kasim’s
subsequent and belated retraction of his statement
that the military, the police, or the CIDG was involved
in the abduction of Tagitis.
The CA characterized as "too farfetched and
unbelievable" and "a bedlam of speculation" police
theories painting the disappearance as "intentional"
on the part of Tagitis. He had no previous brushes
with the law or any record of overstepping the
bounds of any trust regarding money entrusted to
him; no student of the IDB scholarship program ever
came forward to complain that he or she did not get
his or her stipend. The CA also found no basis for the
police theory that Tagitis was "trying to escape from
the clutches of his second wife," on the basis of the
respondent’s testimony that Tagitis was a Muslim who
could have many wives under the Muslim faith, and
that there was "no issue" at all when the latter
divorced his first wife in order to marry the second.
Finally, the CA also ruled out kidnapping for ransom
by the Abu Sayyaf or by the ARMM paramilitary as the
cause for Tagitis’ disappearance, since the
respondent, the police and the military noted that
there was no acknowledgement of Tagitis’ abduction
or demand for payment of ransom – the usual modus
operandi of these terrorist groups.
Based on these considerations, the CA thus extended
the privilege of the writ to Tagitis and his family, and
directed the CIDG Chief, Col. Jose Volpane Pante, PNP
Chief Avelino I. Razon, Task Force Tagitis heads Gen.
Joel Goltiao and Col. Ahiron Ajirim, and PACER Chief
Sr. Supt. Leonardo A. Espina to exert extraordinary
diligence and efforts to protect the life, liberty and
security of Tagitis, with the obligation to provide
monthly reports of their actions to the CA. At the
same time, the CA dismissed the petition against the
then respondents from the military, Lt. Gen Alexander
Yano and Gen. Ruben Rafael, based on the finding
that it was PNP-CIDG, not the military, that was
involved.
On March 31, 2008, the petitioners moved to
reconsider the CA decision, but the CA denied the
motion in its Resolution of April 9, 2008.73
THE PETITION
In this Rule 45 appeal questioning the CA’s March 7,
2008 decision, the petitioners mainly dispute the
sufficiency in form and substance of the Amparo
petition filed before the CA; the sufficiency of the
legal remedies the respondent took before petitioning
for the writ; the finding that the rights to life, liberty
and security of Tagitis had been violated; the
sufficiency of evidence supporting the conclusion that
Tagitis was abducted; the conclusion that the CIDG
Zamboanga was responsible for the abduction; and,
generally, the ruling that the respondent discharged
the burden of proving the allegations of the petition
by substantial evidence.74
THE COURT’S RULING
We do not find the petition meritorious.
Sufficiency in Form and Substance
In questioning the sufficiency in form and substance
of the respondent’s Amparo petition, the petitioners
contend that the petition violated Section 5(c), (d),
and (e) of the Amparo Rule. Specifically, the
petitioners allege that the respondent failed to:
1) allege any act or omission the petitioners
committed in violation of Tagitis’ rights to life,
liberty and security;
2) allege in a complete manner how Tagitis
was abducted, the persons responsible for his
disappearance, and the respondent’s source
of information;
3) allege that the abduction was committed at
the petitioners’ instructions or with their
consent;
4) implead the members of CIDG regional
office in Zamboanga alleged to have custody
over her husband;
5) attach the affidavits of witnesses to support
her accusations;
6) allege any action or inaction attributable to
the petitioners in the performance of their
duties in the investigation of Tagitis’
disappearance; and
7) specify what legally available efforts she
took to determine the fate or whereabouts of
her husband.
A petition for the Writ of Amparo shall be signed and
verified and shall allege, among others (in terms of
the portions the petitioners cite):75
(c) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;
(d) The investigation conducted, if any,
specifying the names, personal circumstances,
and addresses of the investigating authority or
individuals, as well as the manner and conduct
of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner
to determine the fate or whereabouts of the
aggrieved party and the identity of the person
responsible for the threat, act or omission; and
The framers of the Amparo Rule never intended
Section 5(c) to be complete in every detail in stating
the threatened or actual violation of a victim’s rights.
As in any other initiatory pleading, the pleader must
of course state the ultimate facts constituting the
cause of action, omitting the evidentiary details.76 In
an Amparo petition, however, this requirement must
be read in light of the nature and purpose of the
proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to
describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct
or arrest him or her, or where the victim is detained,
because these information may purposely be hidden
or covered up by those who caused the
disappearance. In this type of situation, to require the
level of specificity, detail and precision that the
petitioners apparently want to read into the Amparo
Rule is to make this Rule a token gesture of judicial
concern for violations of the constitutional rights to
life, liberty and security.
To read the Rules of Court requirement on pleadings
while addressing the unique Amparo situation, the
test in reading the petition should be to determine
whether it contains the details available to the
petitioner under the circumstances, while presenting a
cause of action showing a violation of the victim’s
rights to life, liberty and security through State or
private party action. The petition should likewise be
read in its totality, rather than in terms of its isolated
component parts, to determine if the required
elements – namely, of the disappearance, the State or
private action, and the actual or threatened violations
of the rights to life, liberty or security – are present.
In the present case, the petition amply recites in its
paragraphs 4 to 11 the circumstances under which
Tagitis suddenly dropped out of sight after engaging
in normal activities, and thereafter was nowhere to be
found despite efforts to locate him. The petition
alleged, too, under its paragraph 7, in relation to
paragraphs 15 and 16, that according to reliable
information, police operatives were the perpetrators
of the abduction. It also clearly alleged how Tagitis’
rights to life, liberty and security were violated when
he was "forcibly taken and boarded on a motor
vehicle by a couple of burly men believed to be police
intelligence operatives," and then taken "into custody
by the respondents’ police intelligence operatives
since October 30, 2007, specifically by the CIDG, PNP
Zamboanga City, x x x held against his will in an
earnest attempt of the police to involve and connect
[him] with different terrorist groups."77
These allegations, in our view, properly pleaded
ultimate facts within the pleader’s knowledge about
Tagitis’ disappearance, the participation by agents of
the State in this disappearance, the failure of the
State to release Tagitis or to provide sufficient
information about his whereabouts, as well as the
actual violation of his right to liberty. Thus, the
petition cannot be faulted for any failure in its
statement of a cause of action.
If a defect can at all be attributed to the petition, this
defect is its lack of supporting affidavit, as required by
Section 5(c) of the Amparo Rule. Owing to the
summary nature of the proceedings for the writ and
to facilitate the resolution of the petition, the Amparo
Rule incorporated the requirement for supporting
affidavits, with the annotation that these can be used
as the affiant’s direct testimony.78 This requirement,
however, should not be read as an absolute one that
necessarily leads to the dismissal of the petition if not
strictly followed. Where, as in this case, the petitioner
has substantially complied with the requirement by
submitting a verified petition sufficiently detailing the
facts relied upon, the strict need for the sworn
statement that an affidavit represents is essentially
fulfilled. We note that the failure to attach the
required affidavits was fully cured when the
respondent and her witness (Mrs. Talbin) personally
testified in the CA hearings held on January 7 and 17
and February 18, 2008 to swear to and flesh out the
allegations of the petition. Thus, even on this point,
the petition cannot be faulted.
Section 5(d) of the Amparo Rule requires that prior
investigation of an alleged disappearance must have
been made, specifying the manner and results of the
investigation. Effectively, this requirement seeks to
establish at the earliest opportunity the level of
diligence the public authorities undertook in relation
with the reported disappearance.79
We reject the petitioners’ argument that the
respondent’s petition did not comply with the Section
5(d) requirements of the Amparo Rule, as the petition
specifies in its paragraph 11 that Kunnong and his
companions immediately reported Tagitis’
disappearance to the police authorities in Jolo, Sulu as
soon as they were relatively certain that he indeed
had disappeared. The police, however, gave them the
"ready answer" that Tagitis could have been abducted
by the Abu Sayyaf group or other anti-government
groups. The respondent also alleged in paragraphs 17
and 18 of her petition that she filed a "complaint"
with the PNP Police Station in Cotobato and in Jolo,
but she was told of "an intriguing tale" by the police
that her husband was having "a good time with
another woman." The disappearance was alleged to
have been reported, too, to no less than the Governor
of the ARMM, followed by the respondent’s personal
inquiries that yielded the factual bases for her
petition.80
These allegations, to our mind, sufficiently specify
that reports have been made to the police authorities,
and that investigations should have followed. That the
petition did not state the manner and results of the
investigation that the Amparo Rule requires, but
rather generally stated the inaction of the police, their
failure to perform their duty to investigate, or at the
very least, their reported failed efforts, should not be
a reflection on the completeness of the petition. To
require the respondent to elaborately specify the
names, personal circumstances, and addresses of the
investigating authority, as well the manner and
conduct of the investigation is an overly strict
interpretation of Section 5(d), given the respondent’s
frustrations in securing an investigation with
meaningful results. Under these circumstances, we
are more than satisfied that the allegations of the
petition on the investigations undertaken are
sufficiently complete for purposes of bringing the
petition forward.
Section 5(e) is in the Amparo Rule to prevent the use
of a petition – that otherwise is not supported by
sufficient allegations to constitute a proper cause of
action – as a means to "fish" for evidence.81 The
petitioners contend that the respondent’s petition did
not specify what "legally available efforts were taken
by the respondent," and that there was an "undue
haste" in the filing of the petition when, instead of
cooperating with authorities, the respondent
immediately invoked the Court’s intervention.
We do not see the respondent’s petition as the
petitioners view it.
Section 5(e) merely requires that the Amparo
petitioner (the respondent in the present case) allege
"the actions and recourses taken to determine the
fate or whereabouts of the aggrieved party and the
identity of the person responsible for the threat, act
or omission." The following allegations of the
respondent’s petition duly outlined the actions she
had taken and the frustrations she encountered, thus
compelling her to file her petition.
xxxx
7. Soon after the student left the room, Engr. Tagitis
went out of the pension house to take his early lunch
but while out on the street, a couple of burly men
believed to be police intelligence operatives, forcibly
took him and boarded the latter on a motor vehicle
then sped away without the knowledge of his student,
Arsimin Kunnong;
xxxx
10. When Kunnong could not locate Engr. Tagitis, the
former sought the help of another IDB scholar and
reported the matter to the local police agency;
11. Arsimin Kunnong, including his friends and
companions in Jolo, exerted efforts in trying to locate
the whereabouts of Engr. Tagitis and when he
reported the matter to the police authorities in Jolo,
he was immediately given a ready answer that Engr.
Tagitis could [have been] abducted by the Abu Sayyaf
group and other groups known to be fighting against
the government;
12. Being scared with these suggestions and
insinuations of the police officers, Kunnong reported
the matter to the [respondent](wife of Engr. Tagitis)
by phone and other responsible officers and
coordinators of the IDB Scholarship Programme in the
Philippines who alerted the office of the Governor of
ARMM who was then preparing to attend the OIC
meeting in Jeddah, Saudi Arabia;
13. [The respondent], on the other hand, approached
some of her co-employees with the Land Bank in
Digos branch, Digos City, Davao del Sur, who likewise
sought help from some of their friends in the military
who could help them find/locate the whereabouts of
her husband;
xxxx
15. According to reliable information received by the
[respondent], subject Engr. Tagitis is in the custody
of police intelligence operatives, specifically with the
CIDG, PNP Zamboanga City, being held against his
will in an earnest attempt of the police to involve and
connect Engr. Tagitis with the different terrorist
groups;
xxxx
17. [The respondent] filed her complaint with the PNP
Police Station at the ARMM in Cotobato and in Jolo, as
suggested by her friends, seeking their help to find
her husband, but [the respondent’s] request and
pleadings failed to produce any positive results
xxxx
20. Lately, [respondent] was again advised by one of
the [petitioners] to go to the ARMM Police
Headquarters again in Cotobato City and also to the
different Police Headquarters including the police
headquarters in Davao City, in Zamboanga City, in
Jolo, and in Camp Crame, Quezon City, and all these
places have been visited by the [respondent] in
search for her husband, which entailed expenses for
her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from
friends and relatives only to try complying to the
different suggestions of these police officers, despite
of which, her efforts produced no positive results up
to the present time;
xxxx
25. [The respondent] has exhausted all administrative
avenues and remedies but to no avail, and under the
circumstances, [respondent] has no other plain,
speedy and adequate remedy to protect and get the
release of subject Engr. Morced Tagitis from the
illegal clutches of [the petitioners], their intelligence
operatives and the like which are in total violation of
the subject’s human and constitutional rights, except
the issuance of a WRIT OF AMPARO.
Based on these considerations, we rule that the
respondent’s petition for the Writ of Amparo is
sufficient in form and substance and that the Court of
Appeals had every reason to proceed with its
consideration of the case.
The Desaparecidos
The present case is one of first impression in the use
and application of the Rule on the Writ of Amparo in
an enforced disappearance situation. For a deeper
appreciation of the application of this Rule to an
enforced disappearance situation, a brief look at the
historical context of the writ and enforced
disappearances would be very helpful.
The phenomenon of enforced disappearance arising
from State action first attracted notice in Adolf Hitler’s
Nact und Nebel Erlass or Night and Fog Decree of
December 7, 1941.82 The Third Reich’s Night and Fog
Program, a State policy, was directed at persons in
occupied territories "endangering German security";
they were transported secretly to Germany where
they disappeared without a trace. In order to
maximize the desired intimidating effect, the policy
prohibited government officials from providing
information about the fate of these targeted
persons.83
In the mid-1970s, the phenomenon of enforced
disappearances resurfaced, shocking and outraging
the world when individuals, numbering anywhere
from 6,000 to 24,000, were reported to have
"disappeared" during the military regime in Argentina.
Enforced disappearances spread in Latin America, and
the issue became an international concern when the
world noted its widespread and systematic use by
State security forces in that continent under
Operation Condor84 and during the Dirty War85 in the
1970s and 1980s. The escalation of the practice saw
political activists secretly arrested, tortured, and killed
as part of governments’ counter-insurgency
campaigns. As this form of political brutality became
routine elsewhere in the continent, the Latin American
media standardized the term "disappearance" to
describe the phenomenon. The victims of enforced
disappearances were called the
"desaparecidos,"86 which literally means the
"disappeared ones."  In general, there are three
87
different kinds of "disappearance" cases:
1) those of people arrested without witnesses
or without positive identification of the
arresting agents and are never found again;
2) those of prisoners who are usually arrested
without an appropriate warrant and held in
complete isolation for weeks or months while
their families are unable to discover their
whereabouts and the military authorities deny
having them in custody until they eventually
reappear in one detention center or another;
and
3) those of victims of "salvaging" who have
disappeared until their lifeless bodies are later
discovered.88
In the Philippines, enforced disappearances generally
fall within the first two categories, 89 and 855 cases
were recorded during the period of martial law from
1972 until 1986. Of this number, 595 remained
missing, 132 surfaced alive and 127 were found dead.
During former President Corazon C. Aquino’s term,
820 people were reported to have disappeared and of
these, 612 cases were documented. Of this number,
407 remain missing, 108 surfaced alive and 97 were
found dead. The number of enforced disappearances
dropped during former President Fidel V. Ramos’ term
when only 87 cases were reported, while the three-
year term of former President Joseph E. Estrada
yielded 58 reported cases. KARAPATAN, a local non-
governmental organization, reports that as of March
31, 2008, the records show that there were a total of
193 victims of enforced disappearance under
incumbent President Gloria M. Arroyo’s administration.
The Commission on Human Rights’ records show a
total of 636 verified cases of enforced disappearances
from 1985 to 1993. Of this number, 406 remained
missing, 92 surfaced alive, 62 were found dead, and
76 still have undetermined status.90 Currently, the
United Nations Working Group on Enforced or
Involuntary Disappearance91 reports 619 outstanding
cases of enforced or involuntary disappearances
covering the period December 1, 2007 to November
30, 2008.92
Enforced Disappearances
Under Philippine Law
The Amparo Rule expressly provides that the "writ
shall cover extralegal killings and enforced
disappearances or threats thereof."93 We note that
although the writ specifically covers "enforced
disappearances," this concept is neither defined nor
penalized in this jurisdiction. The records of the
Supreme Court Committee on the Revision of Rules
(Committee) reveal that the drafters of the Amparo
Rule initially considered providing an elemental
definition of the concept of enforced disappearance:94
JUSTICE MARTINEZ: I believe that first and foremost
we should come up or formulate a specific definition
[for] extrajudicial killings and enforced
disappearances. From that definition, then we can
proceed to formulate the rules, definite rules
concerning the same.
CHIEF JUSTICE PUNO: … As things stand, there is no
law penalizing extrajudicial killings and enforced
disappearances… so initially also we have to [come up
with] the nature of these extrajudicial killings and
enforced disappearances [to be covered by the Rule]
because our concept of killings and disappearances
will define the jurisdiction of the courts. So we’ll have
to agree among ourselves about the nature of killings
and disappearances for instance, in other
jurisdictions, the rules only cover state actors. That is
an element incorporated in their concept of
extrajudicial killings and enforced disappearances. In
other jurisdictions, the concept includes acts and
omissions not only of state actors but also of non
state actors. Well, more specifically in the case of the
Philippines for instance, should these rules include the
killings, the disappearances which may be authored
by let us say, the NPAs or the leftist organizations and
others. So, again we need to define the nature of the
extrajudicial killings and enforced disappearances that
will be covered by these rules. [Emphasis supplied] 95
In the end, the Committee took cognizance of several
bills filed in the House of Representatives96 and in the
Senate97 on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear
textual definition of these terms in the Rule. The
Committee instead focused on the nature and scope
of the concerns within its power to address and
provided the appropriate remedy therefor, mindful
that an elemental definition may intrude into the
ongoing legislative efforts.98
As the law now stands, extra-judicial killings and
enforced disappearances in this jurisdiction are not
crimes penalized separately from the component
criminal acts undertaken to carry out these killings
and enforced disappearances and are now penalized
under the Revised Penal Code and special laws.99 The
simple reason is that the Legislature has not spoken
on the matter; the determination of what acts are
criminal and what the corresponding penalty these
criminal acts should carry are matters of substantive
law that only the Legislature has the power to enact
under the country’s constitutional scheme and power
structure.
Even without the benefit of directly applicable
substantive laws on extra-judicial killings and
enforced disappearances, however, the Supreme
Court is not powerless to act under its own
constitutional mandate to promulgate "rules
concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure
in all courts,"100 since extrajudicial killings and
enforced disappearances, by their nature and
purpose, constitute State or private party violation of
the constitutional rights of individuals to life, liberty
and security. Although the Court’s power is strictly
procedural and as such does not diminish, increase or
modify substantive rights, the legal protection that
the Court can provide can be very meaningful through
the procedures it sets in addressing extrajudicial
killings and enforced disappearances. The Court,
through its procedural rules, can set the procedural
standards and thereby directly compel the public
authorities to act on actual or threatened violations of
constitutional rights. To state the obvious, judicial
intervention can make a difference – even if only
procedurally – in a situation when the very same
investigating public authorities may have had a hand
in the threatened or actual violations of constitutional
rights.
Lest this Court intervention be misunderstood, we
clarify once again that we do not rule on any issue of
criminal culpability for the extrajudicial killing or
enforced disappearance. This is an issue that requires
criminal action before our criminal courts based on
our existing penal laws. Our intervention is in
determining whether an enforced disappearance has
taken place and who is responsible or accountable for
this disappearance, and to define and impose the
appropriate remedies to address it. The burden for
the public authorities to discharge in these situations,
under the Rule on the Writ of Amparo, is twofold. The
first is to ensure that all efforts at disclosure and
investigation are undertaken under pain of indirect
contempt from this Court when governmental efforts
are less than what the individual situations require.
The second is to address the disappearance, so that
the life of the victim is preserved and his or her liberty
and security restored. In these senses, our orders and
directives relative to the writ are continuing efforts
that are not truly terminated until the extrajudicial
killing or enforced disappearance is fully addressed by
the complete determination of the fate and the
whereabouts of the victim, by the production of the
disappeared person and the restoration of his or her
liberty and security, and, in the proper case, by the
commencement of criminal action against the guilty
parties.
Enforced Disappearance
Under International Law
From the International Law perspective, involuntary
or enforced disappearance is considered a flagrant
violation of human rights.101 It does not only violate
the right to life, liberty and security of the
desaparecido; it affects their families as well through
the denial of their right to information regarding the
circumstances of the disappeared family member.
Thus, enforced disappearances have been said to be
"a double form of torture," with "doubly paralyzing
impact for the victims," as they "are kept ignorant of
their own fates, while family members are deprived of
knowing the whereabouts of their detained loved
ones" and suffer as well the serious economic
hardship and poverty that in most cases follow the
disappearance of the household breadwinner.102
The UN General Assembly first considered the issue of
"Disappeared Persons" in December 1978 under
Resolution 33/173. The Resolution expressed the
General Assembly’s deep concern arising from
"reports from various parts of the world relating to
enforced or involuntary disappearances," and
requested the "UN Commission on Human Rights to
consider the issue of enforced disappearances with a
view to making appropriate recommendations."103
In 1992, in response to the reality that the insidious
practice of enforced disappearance had become a
global phenomenon, the UN General Assembly
adopted the Declaration on the Protection of All
Persons from Enforced Disappearance
(Declaration).104 This Declaration, for the first time,
provided in its third preambular clause a working
description of enforced disappearance, as follows:
Deeply concerned that in many countries, often in a
persistent manner, enforced disappearances occur, in
the sense that persons are arrested, detained or
abducted against their will or otherwise deprived of
their liberty by officials of different branches or levels
of Government, or by organized groups or private
individuals acting on behalf of, or with the support,
direct or indirect, consent or acquiescence of the
Government, followed by a refusal to disclose the fate
or whereabouts of the persons concerned or a refusal
to acknowledge the deprivation of their liberty, which
places such persons outside the protection of the law.
[Emphasis supplied]
Fourteen years after (or on December 20, 2006), the
UN General Assembly adopted the International
Convention for the Protection of All Persons from
Enforced Disappearance (Convention).105 The
Convention was opened for signature in Paris, France
on February 6, 2007.106 Article 2 of the Convention
defined enforced disappearance as follows:
For the purposes of this Convention, "enforced
disappearance" is considered to be the arrest,
detention, abduction or any other form of deprivation
of liberty by agents of the State or by persons or
groups of persons acting with the authorization,
support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the
disappeared person, which place such a person
outside the protection of the law. [Emphasis supplied]
The Convention is the first universal human rights
instrument to assert that there is a right not to be
subject to enforced disappearance107 and that this
right is non-derogable.108 It provides that no one shall
be subjected to enforced disappearance under any
circumstances, be it a state of war, internal political
instability, or any other public emergency. It obliges
State Parties to codify enforced disappearance as an
offense punishable with appropriate penalties under
their criminal law.109 It also recognizes the right of
relatives of the disappeared persons and of the
society as a whole to know the truth on the fate and
whereabouts of the disappeared and on the progress
and results of the investigation.110 Lastly, it classifies
enforced disappearance as a continuing offense, such
that statutes of limitations shall not apply until the
fate and whereabouts of the victim are established.111
Binding Effect of UN
Action on the Philippines
To date, the Philippines has neither signed nor ratified
the Convention, so that the country is not yet
committed to enact any law penalizing enforced
disappearance as a crime. The absence of a specific
penal law, however, is not a stumbling block for
action from this Court, as heretofore mentioned;
underlying every enforced disappearance is a violation
of the constitutional rights to life, liberty and security
that the Supreme Court is mandated by the
Constitution to protect through its rule-making
powers.
Separately from the Constitution (but still pursuant to
its terms), the Court is guided, in acting on Amparo
cases, by the reality that the Philippines is a member
of the UN, bound by its Charter and by the various
conventions we signed and ratified, particularly the
conventions touching on humans rights. Under the UN
Charter, the Philippines pledged to "promote universal
respect for, and observance of, human rights and
fundamental freedoms for all without distinctions as
to race, sex, language or religion."112 Although no
universal agreement has been reached on the precise
extent of the "human rights and fundamental
freedoms" guaranteed to all by the Charter,113 it was
the UN itself that issued the Declaration on enforced
disappearance, and this Declaration states:114
Any act of enforced disappearance is an offence to
dignity. It is condemned as a denial of the purposes
of the Charter of the United Nations and as a grave
and flagrant violation of human rights and
fundamental freedoms proclaimed in the Universal
Declaration of Human Rights and reaffirmed and
developed in international instruments in this field.
[Emphasis supplied]
As a matter of human right and fundamental freedom
and as a policy matter made in a UN Declaration, the
ban on enforced disappearance cannot but have its
effects on the country, given our own adherence to
"generally accepted principles of international law as
part of the law of the land."115
In the recent case of Pharmaceutical and Health Care
Association of the Philippines v. Duque III,116 we held
that:
Under the 1987 Constitution, international law can
become part of the sphere of domestic law either
by transformation or incorporation. The
transformation method requires that an international
law be transformed into a domestic law through a
constitutional mechanism such as local
legislation. The incorporation method applies
when, by mere constitutional declaration,
international law is deemed to have the force
of domestic law. [Emphasis supplied]
We characterized "generally accepted principles of
international law" as norms of general or customary
international law that are binding on all states. We
held further:117
[G]enerally accepted principles of international law,
by virtue of the incorporation clause of the
Constitution, form part of the laws of the land even if
they do not derive from treaty obligations. The
classical formulation in international law sees
those customary rules accepted as binding result from
the combination [of] two elements: the established,
widespread, and consistent practice on the part of
States; and a psychological element known as the
opinion juris sive necessitates (opinion as to law or
necessity). Implicit in the latter element is a belief
that the practice in question is rendered obligatory by
the existence of a rule of law requiring it. [Emphasis
in the original]
The most widely accepted statement of sources of
international law today is Article 38(1) of the Statute
of the International Court of Justice, which provides
that the Court shall apply "international custom, as
evidence of a general practice accepted as
law."118 The material sources of custom include State
practice, State legislation, international and national
judicial decisions, recitals in treaties and other
international instruments, a pattern of treaties in the
same form, the practice of international organs, and
resolutions relating to legal questions in the UN
General Assembly.119 Sometimes referred to as
"evidence" of international law,120 these sources
identify the substance and content of the obligations
of States and are indicative of the "State practice" and
"opinio juris" requirements of international law.121 We
note the following in these respects:
First, barely two years from the adoption of the
Declaration, the Organization of American States
(OAS) General Assembly adopted the Inter-American
Convention on Enforced Disappearance of Persons in
June 1994.122 State parties undertook under this
Convention "not to practice, permit, or tolerate the
forced disappearance of persons, even in states of
emergency or suspension of individual
guarantees."123 One of the key provisions includes the
States’ obligation to enact the crime of forced
disappearance in their respective national criminal
laws and to establish jurisdiction over such cases
when the crime was committed within their
jurisdiction, when the victim is a national of that
State, and "when the alleged criminal is within its
territory and it does not proceed to extradite him,"
which can be interpreted as establishing universal
jurisdiction among the parties to the Inter-American
Convention.124 At present, Colombia, Guatemala,
Paraguay, Peru and Venezuela have enacted separate
laws in accordance with the Inter-American
Convention and have defined activities involving
enforced disappearance to be criminal.125 1avvphi1
Second, in Europe, the European Convention on
Human Rights has no explicit provision dealing with
the protection against enforced disappearance. The
European Court of Human Rights (ECHR), however,
has applied the Convention in a way that provides
ample protection for the underlying rights affected by
enforced disappearance through the Convention’s
Article 2 on the right to life; Article 3 on the
prohibition of torture; Article 5 on the right to liberty
and security; Article 6, paragraph 1 on the right to a
fair trial; and Article 13 on the right to an effective
remedy. A leading example demonstrating the
protection afforded by the European Convention is
Kurt v. Turkey,126 where the ECHR found a violation of
the right to liberty and security of the disappeared
person when the applicant’s son disappeared after
being taken into custody by Turkish forces in the
Kurdish village of Agilli in November 1993. It further
found the applicant (the disappeared person’s
mother) to be a victim of a violation of Article 3, as a
result of the silence of the authorities and the
inadequate character of the investigations
undertaken. The ECHR also saw the lack of any
meaningful investigation by the State as a violation of
Article 13.127
Third, in the United States, the status of the
prohibition on enforced disappearance as part of
customary international law is recognized in the most
recent edition of Restatement of the Law: The
Third,128 which provides that "[a] State violates
international law if, as a matter of State policy, it
practices, encourages, or condones… (3) the murder
or causing the disappearance of individuals."129 We
significantly note that in a related matter that finds
close identification with enforced disappearance – the
matter of torture – the United States Court of Appeals
for the Second Circuit Court held in Filartiga v. Pena-
Irala130 that the prohibition on torture had attained the
status of customary international law. The court
further elaborated on the significance of UN
declarations, as follows:
These U.N. declarations are significant because they
specify with great precision the obligations of member
nations under the Charter. Since their adoption,
"(m)embers can no longer contend that they do not
know what human rights they promised in the Charter
to promote." Moreover, a U.N. Declaration is,
according to one authoritative definition, "a formal
and solemn instrument, suitable for rare occasions
when principles of great and lasting importance are
being enunciated." Accordingly, it has been observed
that the Universal Declaration of Human Rights "no
longer fits into the dichotomy of ‘binding treaty’
against ‘non-binding pronouncement,' but is rather an
authoritative statement of the international
community." Thus, a Declaration creates an
expectation of adherence, and "insofar as the
expectation is gradually justified by State practice, a
declaration may by custom become recognized as
laying down rules binding upon the States." Indeed,
several commentators have concluded that the
Universal Declaration has become, in toto, a part of
binding, customary international law. [Citations
omitted]
Fourth, in interpreting Article 2 (right to an effective
domestic remedy) of the International Convention on
Civil and Political Rights (ICCPR), to which the
Philippines is both a signatory and a State Party, the
UN Human Rights Committee, under the Office of the
High Commissioner for Human Rights, has stated that
the act of enforced disappearance violates Articles 6
(right to life), 7 (prohibition on torture, cruel,
inhuman or degrading treatment or punishment) and
9 (right to liberty and security of the person) of the
ICCPR, and the act may also amount to a crime
against humanity.131
Fifth, Article 7, paragraph 1 of the 1998 Rome Statute
establishing the International Criminal Court (ICC)
also covers enforced disappearances insofar as they
are defined as crimes against humanity,132 i.e., crimes
"committed as part of a widespread or systematic
attack against any civilian population, with knowledge
of the attack." While more than 100 countries have
ratified the Rome Statute,133 the Philippines is still
merely a signatory and has not yet ratified it. We note
that Article 7(1) of the Rome Statute has been
incorporated in the statutes of other international and
hybrid tribunals, including Sierra Leone Special Court,
the Special Panels for Serious Crimes in Timor-Leste,
and the Extraordinary Chambers in the Courts of
Cambodia.134 In addition, the implementing legislation
of State Parties to the Rome Statute of the ICC has
given rise to a number of national criminal provisions
also covering enforced disappearance.135
While the Philippines is not yet formally bound by the
terms of the Convention on enforced disappearance
(or by the specific terms of the Rome Statute) and
has not formally declared enforced disappearance as
a specific crime, the above recital shows that enforced
disappearance as a State practice has been
repudiated by the international community, so that
the ban on it is now a generally accepted principle of
international law, which we should consider a part of
the law of the land, and which we should act upon to
the extent already allowed under our laws and the
international conventions that bind us.
The following civil or political rights under the
Universal Declaration of Human Rights, the ICCPR
and the International Convention on Economic, Social
and Cultural Rights (ICESR) may be infringed in the
course of a disappearance:136
1) the right to recognition as a person before
the law;
2) the right to liberty and security of the
person;
3) the right not to be subjected to torture and
other cruel, inhuman or degrading treatment
or punishment;
4) the right to life, when the disappeared
person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial
guarantees;
7) the right to an effective remedy, including
reparation and compensation;
8) the right to know the truth regarding the
circumstances of a disappearance.
9) the right to protection and assistance to
the family;
10) the right to an adequate standard of
living;
11) the right to health; and
12) the right to education [Emphasis supplied]
Article 2 of the ICCPR, which binds the Philippines as
a state party, provides:
Article 2
3. Each State Party to the present Covenant
undertakes:
(a) To ensure that any person whose rights or
freedoms as herein recognized are violated
shall have an effective remedy,
notwithstanding that the violation has been
committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a
remedy shall have his right thereto
determined by competent judicial,
administrative or legislative authorities, or by
any other competent authority provided for by
the legal system of the State, and to develop
the possibilities of judicial remedy;
(c) To ensure that the competent authorities
shall enforce such remedies when granted.
[Emphasis supplied]
In General Comment No. 31, the UN Human Rights
Committee opined that the right to an effective
remedy under Article 2 of the ICCPR includes the
obligation of the State to investigate ICCPR violations
promptly, thoroughly, and effectively, viz:137
15. Article 2, paragraph 3, requires that in addition to
effective protection of Covenant rights, States Parties
must ensure that individuals also have accessible and
effective remedies to vindicate those rights… The
Committee attaches importance to States Parties'
establishing appropriate judicial and administrative
mechanisms for addressing claims of rights violations
under domestic law… Administrative mechanisms are
particularly required to give effect to the general
obligation to investigate allegations of violations
promptly, thoroughly and effectively through
independent and impartial bodies. A failure by a State
Party to investigate allegations of violations could in
and of itself give rise to a separate breach of the
Covenant. Cessation of an ongoing violation is an
essential element of the right to an effective remedy.
[Emphasis supplied]
The UN Human Rights Committee further stated in
the same General Comment No. 31 that failure to
investigate as well as failure to bring to justice the
perpetrators of ICCPR violations could in and of itself
give rise to a separate breach of the Covenant,
thus:138
18. Where the investigations referred to in paragraph
15 reveal violations of certain Covenant rights, States
Parties must ensure that those responsible are
brought to justice. As with failure to investigate,
failure to bring to justice perpetrators of such
violations could in and of itself give rise to a separate
breach of the Covenant. These obligations arise
notably in respect of those violations recognized as
criminal under either domestic or international law,
such as torture and similar cruel, inhuman and
degrading treatment (article 7), summary and
arbitrary killing (article 6) and enforced disappearance
(articles 7 and 9 and, frequently, 6). Indeed, the
problem of impunity for these violations, a matter of
sustained concern by the Committee, may well be an
important contributing element in the recurrence of
the violations. When committed as part of a
widespread or systematic attack on a civilian
population, these violations of the Covenant are
crimes against humanity (see Rome Statute of the
International Criminal Court, article 7). [Emphasis
supplied]
In Secretary of National Defense v. Manalo,139 this
Court, in ruling that the right to security of persons is
a guarantee of the protection of one’s right by the
government, held that:
The right to security of person in this third sense is a
corollary of the policy that the State "guarantees full
respect for human rights" under Article II, Section 11
of the 1987 Constitution. As the government is the
chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty
and security of person is rendered ineffective if
government does not afford  protection to these
rights especially when they are under
threat.  Protection includes conducting effective
investigations, organization of the government
apparatus to extend protection to victims of
extralegal killings or enforced disappearances
(or threats thereof) and/or their families, and
bringing offenders to the bar of justice. The
Inter-American Court of Human Rights stressed the
importance of investigation in the Velasquez
Rodriguez Case, viz:
(The duty to investigate) must be undertaken in
a serious manner and not as a mere formality
preordained to be ineffective. An investigation must
have an objective and be assumed by the State as its
own legal duty, not as a step taken by private
interests that depends upon the initiative of the victim
or his family or upon their offer of proof, without an
effective search for the truth by the government.
[Emphasis supplied]
Manalo significantly cited Kurt v. Turkey,140 where the
ECHR interpreted the "right to security" not only as a
prohibition on the State against arbitrary deprivation
of liberty, but also as the imposition of a positive duty
to afford protection to the right to liberty. The Court
notably quoted the following ECHR ruling:
[A]ny deprivation of liberty must not only have been
effected in conformity with the substantive and
procedural rules of national law but must equally be
in keeping with the very purpose of Article 5, namely
to protect the individual from arbitrariness... Having
assumed control over that individual, it is incumbent
on the authorities to account for his or her
whereabouts. For this reason, Article 5 must be seen
as requiring the authorities to take effective measures
to safeguard against the risk of disappearance and to
conduct a prompt effective investigation into an
arguable claim that a person has been taken into
custody and has not been seen since. [Emphasis
supplied]
These rulings effectively serve as the backdrop for the
Rule on the Writ of Amparo, which the Court made
effective on October 24, 2007. Although the Amparo
Rule still has gaps waiting to be filled through
substantive law, as evidenced primarily by the lack of
a concrete definition of "enforced disappearance," the
materials cited above, among others, provide ample
guidance and standards on how, through the medium
of the Amparo Rule, the Court can provide remedies
and protect the constitutional rights to life, liberty and
security that underlie every enforced disappearance.
Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance
Before going into the issue of whether the respondent
has discharged the burden of proving the allegations
of the petition for the Writ of Amparo by the degree
of proof required by the Amparo Rule, we shall
discuss briefly the unique evidentiary difficulties
presented by enforced disappearance cases; these
difficulties form part of the setting that the
implementation of the Amparo Rule shall encounter.
These difficulties largely arise because the State itself
– the party whose involvement is alleged –
investigates enforced disappearances. Past
experiences in other jurisdictions show that the
evidentiary difficulties are generally threefold.
First, there may be a deliberate concealment of the
identities of the direct perpetrators.141 Experts note
that abductors are well organized, armed and usually
members of the military or police forces, thus:
The victim is generally arrested by the security forces
or by persons acting under some form of
governmental authority. In many countries the units
that plan, implement and execute the program are
generally specialized, highly-secret bodies within the
armed or security forces. They are generally directed
through a separate, clandestine chain of command,
but they have the necessary credentials to avoid or
prevent any interference by the "legal" police forces.
These authorities take their victims to secret
detention centers where they subject them to
interrogation and torture without fear of judicial or
other controls.142
In addition, there are usually no witnesses to the
crime; if there are, these witnesses are usually afraid
to speak out publicly or to testify on the
disappearance out of fear for their own lives.143 We
have had occasion to note this difficulty in Secretary
of Defense v. Manalo144 when we acknowledged that
"where powerful military officers are implicated, the
hesitation of witnesses to surface and testify against
them comes as no surprise."
Second, deliberate concealment of pertinent evidence
of the disappearance is a distinct possibility; the
central piece of evidence in an enforced
disappearance – i.e., the corpus delicti or the victim’s
body – is usually concealed to effectively thwart the
start of any investigation or the progress of one that
may have begun.145 The problem for the victim’s
family is the State’s virtual monopoly of access to
pertinent evidence. The Inter-American Court of
Human Rights (IACHR) observed in the landmark case
of Velasquez Rodriguez146 that inherent to the practice
of enforced disappearance is the deliberate use of the
State’s power to destroy the pertinent evidence. The
IACHR described the concealment as a clear attempt
by the State to commit the perfect crime.147
Third is the element of denial; in many cases, the
State authorities deliberately deny that the enforced
disappearance ever occurred.148 "Deniability" is central
to the policy of enforced disappearances, as the
absence of any proven disappearance makes it easier
to escape the application of legal standards ensuring
the victim’s human rights.149 Experience shows that
government officials typically respond to requests for
information about desaparecidos by saying that they
are not aware of any disappearance, that the missing
people may have fled the country, or that their names
have merely been invented.150
These considerations are alive in our minds, as these
are the difficulties we confront, in one form or
another, in our consideration of this case.
Evidence and Burden of Proof in
Enforced Disappearances Cases
Sections 13, 17 and 18 of the Amparo Rule define the
nature of an Amparo proceeding and the degree and
burden of proof the parties to the case carry, as
follows:
Section 13. Summary Hearing. The hearing on the
petition shall be summary. However, the court,
justice or judge may call for a preliminary conference
to simplify the issues and determine the possibility of
obtaining stipulations and admissions from the
parties.
xxxx
Section 17. Burden of Proof and Standard of Diligence
Required. – The parties shall establish their claims
by substantial evidence.
The respondent who is a private individual must prove
that ordinary diligence as required by applicable laws,
rules and regulations was observed in the
performance of duty.
The respondent who is a public official or employee
must prove that extraordinary diligence as required by
applicable laws, rules and regulations was observed in
the performance of duty.
The respondent public official or employee cannot
invoke the presumption that official duty has been
regularly performed or evade responsibility or liability.
Section 18. Judgment. – … If the allegations in the
petition are proven by substantial evidence, the
court shall grant the privilege of the writ and such
reliefs as may be proper and appropriate; otherwise,
the privilege shall be denied. [Emphasis supplied]
These characteristics – namely, of being summary
and the use of substantial evidence as the required
level of proof (in contrast to the usual preponderance
of evidence or proof beyond reasonable doubt in
court proceedings) – reveal the clear intent of the
framers of the Amparo Rule to have the equivalent of
an administrative proceeding, albeit judicially
conducted, in addressing Amparo situations. The
standard of diligence required – the duty of public
officials and employees to observe extraordinary
diligence – point, too, to the extraordinary measures
expected in the protection of constitutional rights and
in the consequent handling and investigation of extra-
judicial killings and enforced disappearance cases.
Thus, in these proceedings, the Amparo petitioner
needs only to properly comply with the substance and
form requirements of a Writ of Amparo petition, as
discussed above, and prove the allegations by
substantial evidence. Once a rebuttable case has been
proven, the respondents must then respond and
prove their defenses based on the standard of
diligence required. The rebuttable case, of course,
must show that an enforced disappearance took place
under circumstances showing a violation of the
victim’s constitutional rights to life, liberty or security,
and the failure on the part of the investigating
authorities to appropriately respond.
The landmark case of Ang Tibay v. Court of Industrial
Relations151 provided the Court its first opportunity to
define the substantial evidence required to arrive at a
valid decision in administrative proceedings. To
directly quote Ang Tibay:
Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.
[citations omitted] The statute provides that ‘the rules
of evidence prevailing in courts of law and equity shall
not be controlling.’ The obvious purpose of this and
similar provisions is to free administrative boards from
the compulsion of technical rules so that the mere
admission of matter which would be deemed
incompetent in judicial proceedings would not
invalidate the administrative order. [citations omitted]
But this assurance of a desirable flexibility in
administrative procedure does not go so far as to
justify orders without a basis in evidence having
rational probative force. [Emphasis supplied]
In Secretary of Defense v. Manalo,152 which was the
Court’s first petition for a Writ of Amparo, we
recognized that the full and exhaustive proceedings
that the substantial evidence standard regularly
requires do not need to apply due to the summary
nature of Amparo proceedings. We said:
The remedy [of the writ of amparo] provides rapid
judicial relief as it partakes of a summary proceeding
that requires only substantial evidence to make the
appropriate reliefs available to the petitioner; it is not
an action to determine criminal guilt requiring proof
beyond reasonable doubt, or liability for damages
requiring preponderance of evidence, or
administrative responsibility requiring substantial
evidence that will require full and exhaustive
proceedings. [Emphasis supplied]
Not to be forgotten in considering the evidentiary
aspects of Amparo petitions are the unique difficulties
presented by the nature of enforced disappearances,
heretofore discussed, which difficulties this Court
must frontally meet if the Amparo Rule is to be given
a chance to achieve its objectives. These evidentiary
difficulties compel the Court to adopt standards
appropriate and responsive to the circumstances,
without transgressing the due process requirements
that underlie every proceeding.
In the seminal case of Velasquez Rodriguez,153 the
IACHR – faced with a lack of direct evidence that the
government of Honduras was involved in Velasquez
Rodriguez’ disappearance – adopted a relaxed and
informal evidentiary standard, and established the
rule that presumes governmental responsibility for a
disappearance if it can be proven that the
government carries out a general practice of enforced
disappearances and the specific case can be linked to
that practice.154 The IACHR took note of the realistic
fact that enforced disappearances could be proven
only through circumstantial or indirect evidence or by
logical inference; otherwise, it was impossible to
prove that an individual had been made to disappear.
It held:
130. The practice of international and domestic courts
shows that direct evidence, whether testimonial or
documentary, is not the only type of evidence that
may be legitimately considered in reaching a decision.
Circumstantial evidence, indicia, and presumptions
may be considered, so long as they lead to
conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is
especially important in allegations of disappearances,
because this type of repression is characterized by an
attempt to suppress all information about the
kidnapping or the whereabouts and fate of the victim.
[Emphasis supplied]
In concluding that the disappearance of Manfredo
Velásquez (Manfredo) was carried out by agents who
acted under cover of public authority, the IACHR
relied on circumstantial evidence including the
hearsay testimony of Zenaida Velásquez, the victim’s
sister, who described Manfredo’s kidnapping on the
basis of conversations she had with witnesses who
saw Manfredo kidnapped by men in civilian clothes in
broad daylight. She also told the Court that a former
Honduran military official had announced that
Manfredo was kidnapped by a special military
squadron acting under orders of the Chief of the
Armed Forces.155 The IACHR likewise considered the
hearsay testimony of a second witness who asserted
that he had been told by a Honduran military officer
about the disappearance, and a third witness who
testified that he had spoken in prison to a man who
identified himself as Manfredo.156
Velasquez stresses the lesson that flexibility is
necessary under the unique circumstances that
enforced disappearance cases pose to the courts; to
have an effective remedy, the standard of evidence
must be responsive to the evidentiary difficulties
faced. On the one hand, we cannot be arbitrary in the
admission and appreciation of evidence, as
arbitrariness entails violation of rights and cannot be
used as an effective counter-measure; we only
compound the problem if a wrong is addressed by the
commission of another wrong. On the other hand, we
cannot be very strict in our evidentiary rules and
cannot consider evidence the way we do in the usual
criminal and civil cases; precisely, the proceedings
before us are administrative in nature where, as a
rule, technical rules of evidence are not strictly
observed. Thus, while we must follow the substantial
evidence rule, we must observe flexibility in
considering the evidence we shall take into account.
The fair and proper rule, to our mind, is to consider
all the pieces of evidence adduced in their totality,
and to consider any evidence otherwise inadmissible
under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In
other words, we reduce our rules to the most basic
test of reason – i.e., to the relevance of the evidence
to the issue at hand and its consistency with all other
pieces of adduced evidence. Thus, even hearsay
evidence can be admitted if it satisfies this basic
minimum test.
We note in this regard that the use of flexibility in the
consideration of evidence is not at all novel in the
Philippine legal system. In child abuse cases, Section
28 of the Rule on Examination of a Child Witness157 is
expressly recognized as an exception to the hearsay
rule. This Rule allows the admission of the hearsay
testimony of a child describing any act or attempted
act of sexual abuse in any criminal or non-criminal
proceeding, subject to certain prerequisites and the
right of cross-examination by the adverse party. The
admission of the statement is determined by the court
in light of specified subjective and objective
considerations that provide sufficient indicia of
reliability of the child witness.158 These requisites for
admission find their counterpart in the present case
under the above-described conditions for the exercise
of flexibility in the consideration of evidence, including
hearsay evidence, in extrajudicial killings and
enforced disappearance cases.
Assessment of the Evidence
The threshold question for our resolution is: was
there an enforced disappearance within the meaning
of this term under the UN Declaration we have cited?
The Convention defines enforced disappearance as
"the arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by
persons or groups of persons acting with the
authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place
such a person outside the protection of the
law."159 Under this definition, the elements that
constitute enforced disappearance are essentially
fourfold:160
(a) arrest, detention, abduction or any form of
deprivation of liberty;
(b) carried out by agents of the State or
persons or groups of persons acting with the
authorization, support or acquiescence of the
State;
(c) followed by a refusal to acknowledge the
detention, or a concealment of the fate of the
disappeared person; and
(d) placement of the disappeared person
outside the protection of the law. [Emphasis
supplied]
We find no direct evidence indicating how the victim
actually disappeared. The direct evidence at hand
only shows that Tagitis went out of the ASY Pension
House after depositing his room key with the hotel
desk and was never seen nor heard of again. The
undisputed conclusion, however, from all concerned –
the petitioner, Tagitis’ colleagues and even the police
authorities – is that Tagistis disappeared under
mysterious circumstances and was never seen again.
The respondent injected the causal element in her
petition and testimony, as we shall discuss below.
We likewise find no direct evidence showing that
operatives of PNP CIDG Zamboanga abducted or
arrested Tagitis. If at all, only the respondent’s
allegation that Tagistis was under CIDG Zamboanga
custody stands on record, but it is not supported by
any other evidence, direct or circumstantial.
In her direct testimony, the respondent pointed to
two sources of information as her bases for her
allegation that Tagistis had been placed under
government custody (in contrast with CIDG
Zamboanga custody). The first was an unnamed
friend in Zamboanga (later identified as Col.
Ancanan), who occupied a high position in the military
and who allegedly mentioned that Tagitis was in good
hands. Nothing came out of this claim, as both the
respondent herself and her witness, Mrs. Talbin, failed
to establish that Col. Ancanan gave them any
information that Tagitis was in government custody.
Col. Ancanan, for his part, admitted the meeting with
the respondent but denied giving her any information
about the disappearance.
The more specific and productive source of
information was Col. Kasim, whom the respondent,
together with her witness Mrs. Talbin, met in Camp
Katitipan in Davao City. To quote the relevant
portions of the respondent’s testimony:
Q: Were you able to speak to other military officials
regarding the whereabouts of your husband
particularly those in charge of any records or
investigation?
A: I went to Camp Katitipan in Davao City. Then one
military officer, Col. Casim, told me that my husband
is being abducted [sic] because he is under custodial
investigation because he is allegedly "parang liason
ng J.I.", sir.
Q: What is J.I.?
A: Jema’ah Islamiah, sir.
Q: Was there any information that was read to you
during one of those visits of yours in that Camp?
A: Col. Casim did not furnish me a copy of his report
because he said those reports are highly confidential,
sir.
Q: Was it read to you then even though you were not
furnished a copy?
A: Yes, sir. In front of us, my friends.
Q: And what was the content of that highly
confidential report?
A: Those alleged activities of Engineer Tagitis,
sir.161 [Emphasis supplied]
She confirmed this testimony in her cross-
examination:
Q: You also mentioned that you went to Camp
Katitipan in Davao City?
A: Yes, ma’am.
Q: And a certain Col. Kasim told you that your
husband was abducted and under custodial
investigation?
A: Yes, ma’am.
Q: And you mentioned that he showed you a report?
A: Yes, ma’am.
Q: Were you able to read the contents of that report?
A: He did not furnish me a copy of those [sic] report
because those [sic] were highly confidential. That is a
military report, ma’am.
Q: But you were able to read the contents?
A: No. But he read it in front of us, my friends,
ma’am.
Q: How many were you when you went to see Col.
Kasim?
A: There were three of us, ma’am.
Q: Who were your companions?
A: Mrs. Talbin, tapos yung dalawang friends nya from
Mati City, Davao Oriental, ma’am.162
xxxx
Q: When you were told that your husband is in good
hands, what was your reaction and what did you do?
A: May binasa kasi sya that my husband has a parang
meeting with other people na parang mga terorista na
mga tao. Tapos at the end of the report is [sic] under
custodial investigation. So I told him "Colonel, my
husband is sick. He is diabetic at nagmemaintain yun
ng gamot. Pakisabi lang sa naghohold sa asawa ko na
bigyan siya ng gamot, ma’am."163
xxxx
Q: You mentioned that you received information that
Engineer Tagitis is being held by the CIDG in
Zamboanga, did you go to CIDG Zamboanga to verify
that information?
A: I did not go to CIDG Zamboanga. I went to Camp
Karingal instead. Enough na yun na effort ko because
I know that they would deny it, ma’am.164
On February 11, 2008, the respondent presented Mrs.
Talbin to corroborate her testimony that her husband
was abducted and held under custodial investigation
by the PNP-CIDG Zamboanga City, viz:
Q: You said that you went to Camp Katitipan in Davao
City sometime November 24, 2007, who was with you
when you went there?
A: Mary Jean Tagitis, sir.
Q: Only the two of you?
A: No. We have some other companions. We were
four at that time, sir.
Q: Who were they?
A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and
me, sir.
Q: Were you able to talk, see some other officials at
Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only,
sir.
Q: Were you able to talk to him?
A: Yes, sir.
Q: The four of you?
A: Yes, sir.
Q: What information did you get from Col. Kasim
during that time?
A: The first time we met with [him] I asked him if he
knew of the exact location, if he can furnish us the
location of Engr. Tagitis. And he was reading this
report. He told us that Engr. Tagitis is in good hands.
He is with the military, but he is not certain whether
he is with the AFP or PNP. He has this serious case.
He was charged of terrorism because he was under
surveillance from January 2007 up to the time that he
was abducted. He told us that he was under custodial
investigation. As I’ve said earlier, he was seen under
surveillance from January. He was seen talking to
Omar Patik, a certain Santos of Bulacan who is also a
Balik Islam and charged with terrorism. He was seen
carrying boxes of medicines. Then we asked him how
long will he be in custodial investigation. He said until
we can get some information. But he also told us that
he cannot give us that report because it was a raw
report. It was not official, sir.
Q: You said that he was reading a report, was that
report in document form, in a piece of paper or was it
in the computer or what?
A: As far as I can see it, sir, it is written in white bond
paper. I don’t know if it was computerized but I’m
certain that it was typewritten. I’m not sure if it used
computer, fax or what, sir.
Q: When he was reading it to you, was he reading it
line by line or he was reading in a summary form?
A: Sometimes he was glancing to the report and
talking to us, sir.165
xxxx
Q: Were you informed as to the place where he was
being kept during that time?
A: He did not tell us where he [Tagitis] was being
kept. But he mentioned this Talipapao, Sulu, sir.
Q: After that incident, what did you do if any?
A: We just left and as I’ve mentioned, we just waited
because that raw information that he was reading to
us [sic] after the custodial investigation, Engineer
Tagitis will be released. [Emphasis supplied]166
Col. Kasim never denied that he met with the
respondent and her friends, and that he provided
them information based on the input of an unnamed
asset. He simply claimed in his testimony that the
"informal letter" he received from his informant in
Sulu did not indicate that Tagitis was in the custody
of the CIDG. He also stressed that the information he
provided the respondent was merely a "raw report"
from "barangay intelligence" that still needed
confirmation and "follow up" as to its veracity.167
To be sure, the respondent’s and Mrs. Talbin’s
testimonies were far from perfect, as the petitioners
pointed out. The respondent mistakenly characterized
Col. Kasim as a "military officer" who told her that
"her husband is being abducted because he is under
custodial investigation because he is allegedly ‘parang
liason ng J.I.’" The petitioners also noted that "Mrs.
Talbin’s testimony imputing certain statements to Sr.
Supt. Kasim that Engr. Tagitis is with the military, but
he is not certain whether it is the PNP or AFP is not
worthy of belief, since Sr. Supt. Kasim is a high
ranking police officer who would certainly know that
the PNP is not part of the military."
Upon deeper consideration of these inconsistencies,
however, what appears clear to us is that the
petitioners never really steadfastly disputed or
presented evidence to refute the credibility of the
respondent and her witness, Mrs. Talbin. The
inconsistencies the petitioners point out relate, more
than anything else, to details that should not affect
the credibility of the respondent and Mrs. Talbin; the
inconsistencies are not on material points.168 We note,
for example, that these witnesses are lay people in so
far as military and police matters are concerned, and
confusion between the police and the military is not
unusual. As a rule, minor inconsistencies such as
these indicate truthfulness rather than
prevarication169and only tend to strengthen their
probative value, in contrast to testimonies from
various witnesses dovetailing on every detail; the
latter cannot but generate suspicion that the material
circumstances they testified to were integral parts of
a well thought of and prefabricated story.170
Based on these considerations and the unique
evidentiary situation in enforced disappearance cases,
we hold it duly established that Col. Kasim informed
the respondent and her friends, based on the
informant’s letter, that Tagitis, reputedly a liaison for
the JI and who had been under surveillance since
January 2007, was "in good hands" and under
custodial investigation for complicity with the JI after
he was seen talking to one Omar Patik and a certain
"Santos" of Bulacan, a "Balik Islam" charged with
terrorism. The respondent’s and Mrs. Talbin’s
testimonies cannot simply be defeated by Col. Kasim’s
plain denial and his claim that he had destroyed his
informant’s letter, the critical piece of evidence that
supports or negates the parties’ conflicting claims.
Col. Kasim’s admitted destruction of this letter –
effectively, a suppression of this evidence – raises the
presumption that the letter, if produced, would be
proof of what the respondent claimed.171 For brevity,
we shall call the evidence of what Col. Kasim reported
to the respondent to be the "Kasim evidence."
Given this evidence, our next step is to decide
whether we can accept this evidence, in lieu of direct
evidence, as proof that the disappearance of Tagitis
was due to action with government participation,
knowledge or consent and that he was held for
custodial investigation. We note in this regard that
Col. Kasim was never quoted to have said that the
custodial investigation was by the CIDG Zamboanga.
The Kasim evidence only implies government
intervention through the use of the term "custodial
investigation," and does not at all point to CIDG
Zamboanga as Tagitis’ custodian.
Strictly speaking, we are faced here with a classic
case of hearsay evidence – i.e., evidence whose
probative value is not based on the personal
knowledge of the witnesses (the respondent, Mrs.
Talbin and Col. Kasim himself) but on the knowledge
of some other person not on the witness stand (the
informant).172
To say that this piece of evidence is incompetent and
inadmissible evidence of what it substantively states is
to acknowledge – as the petitioners effectively
suggest – that in the absence of any direct evidence,
we should simply dismiss the petition. To our mind,
an immediate dismissal for this reason is no different
from a statement that the Amparo Rule – despite its
terms – is ineffective, as it cannot allow for the
special evidentiary difficulties that are unavoidably
present in Amparo situations, particularly in
extrajudicial killings and enforced disappearances.
The Amparo Rule was not promulgated with this
intent or with the intent to make it a token gesture of
concern for constitutional rights. It was promulgated
to provide effective and timely remedies, using and
profiting from local and international experiences in
extrajudicial killings and enforced disappearances, as
the situation may require. Consequently, we have no
choice but to meet the evidentiary difficulties inherent
in enforced disappearances with the flexibility that
these difficulties demand.1avvphi1
To give full meaning to our Constitution and the rights
it protects, we hold that, as in Velasquez, we should
at least take a close look at the available evidence to
determine the correct import of every piece of
evidence – even of those usually considered
inadmissible under the general rules of evidence –
taking into account the surrounding circumstances
and the test of reason that we can use as basic
minimum admissibility requirement. In the present
case, we should at least determine whether the Kasim
evidence before us is relevant and meaningful to the
disappearance of Tagistis and reasonably consistent
with other evidence in the case.
The evidence about Tagitis’ personal circumstances
surrounded him with an air of mystery. He was
reputedly a consultant of the World Bank and a Senior
Honorary Counselor for the IDB who attended a
seminar in Zamboanga and thereafter proceded to
Jolo for an overnight stay, indicated by his request to
Kunnong for the purchase of a return ticket to
Zamboanga the day after he arrived in Jolo. Nothing
in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli,
early on informed the Jolo police that Tagitis may
have taken funds given to him in trust for IDB
scholars. Prof Matli later on stated that he never
accused Tagitis of taking away money held in trust,
although he confirmed that the IDB was seeking
assistance in locating funds of IDB scholars deposited
in Tagitis’ personal account. Other than these pieces
of evidence, no other information exists in the records
relating to the personal circumstances of Tagitis.
The actual disappearance of Tagitis is as murky as his
personal circumstances. While the Amparo petition
recited that he was taken away by "burly men
believed to be police intelligence operatives," no
evidence whatsoever was introduced to support this
allegation. Thus, the available direct evidence is that
Tagitis was last seen at 12.30 p.m. of October 30,
2007 – the day he arrived in Jolo – and was never
seen again.
The Kasim evidence assumes critical materiality given
the dearth of direct evidence on the above aspects of
the case, as it supplies the gaps that were never
looked into and clarified by police investigation. It is
the evidence, too, that colors a simple missing person
report into an enforced disappearance case, as it
injects the element of participation by agents of the
State and thus brings into question how the State
reacted to the disappearance.
Denials on the part of the police authorities, and
frustration on the part of the respondent, characterize
the attempts to locate Tagitis. Initially in Jolo, the
police informed Kunnong that Tagitis could have been
taken by the Abu Sayyaf or other groups fighting the
government. No evidence was ever offered on
whether there was active Jolo police investigation and
how and why the Jolo police arrived at this
conclusion. The respondent’s own inquiry in Jolo
yielded the answer that he was not missing but was
with another woman somewhere. Again, no evidence
exists that this explanation was arrived at based on
an investigation. As already related above, the inquiry
with Col. Ancanan in Zamboanga yielded ambivalent
results not useful for evidentiary purposes. Thus, it
was only the inquiry from Col. Kasim that yielded
positive results. Col. Kasim’s story, however,
confirmed only the fact of his custodial investigation
(and, impliedly, his arrest or abduction), without
identifying his abductor/s or the party holding him in
custody. The more significant part of Col. Kasim’s
story is that the abduction came after Tagitis was
seen talking with Omar Patik and a certain Santos of
Bulacan, a "Balik Islam" charged with terrorism. Mrs.
Talbin mentioned, too, that Tagitis was being held at
Talipapao, Sulu. None of the police agencies
participating in the investigation ever pursued these
leads. Notably, Task Force Tagitis to which this
information was relayed did not appear to have lifted
a finger to pursue these aspects of the case.
More denials were manifested in the Returns on the
writ to the CA made by the petitioners. Then PNP
Chief Gen. Avelino I. Razon merely reported the
directives he sent to the ARMM Regional Director and
the Regional Chief of the CIDG on Tagitis, and these
reports merely reiterated the open-ended initial report
of the disappearance. The CIDG directed a search in
all of its divisions with negative results. These, to the
PNP Chief, constituted the exhaustion "of all possible
efforts." PNP-CIDG Chief General Edgardo M.
Doromal, for his part, also reported negative results
after searching "all divisions and departments [of the
CIDG] for a person named Engr. Morced N.
Tagitis . . . and after a diligent and thorough
research, records show that no such person is being
detained in the CIDG or any of its department or
divisions." PNP-PACER Chief PS Supt. Leonardo A.
Espina and PNP PRO ARMM Regional Director PC
Superintendent Joel R. Goltiao did no better in their
affidavits-returns, as they essentially reported the
results of their directives to their units to search for
Tagitis.
The extent to which the police authorities acted was
fully tested when the CA constituted Task Force
Tagitis, with specific directives on what to do. The
negative results reflected in the Returns on the writ
were again replicated during the three hearings the
CA scheduled. Aside from the previously mentioned
"retraction" that Prof. Matli made to correct his
accusation that Tagitis took money held in trust for
students, PS Supt. Ajirim reiterated in his testimony
that the CIDG consistently denied any knowledge or
complicity in any abduction and said that there was
no basis to conclude that the CIDG or any police unit
had anything to do with the disappearance of Tagitis;
he likewise considered it premature to conclude that
Tagitis simply ran away with the money in his
custody. As already noted above, the Task Force
notably did not pursue any investigation about the
personal circumstances of Tagitis, his background in
relation to the IDB and the background and activities
of this Bank itself, and the reported sighting of
Tagistis with terrorists and his alleged custody in
Talipapao, Sulu. No attempt appears to have ever
been made to look into the alleged IDB funds that
Tagitis held in trust, or to tap any of the "assets" who
are indispensable in investigations of this nature.
These omissions and negative results were
aggravated by the CA findings that it was only as late
as January 28, 2008 or three months after the
disappearance that the police authorities requested
for clear pictures of Tagitis. Col. Kasim could not
attend the trial because his subpoena was not served,
despite the fact that he was designated as Ajirim’s
replacement in the latter’s last post. Thus, Col. Kasim
was not then questioned. No investigation – even an
internal one – appeared to have been made to inquire
into the identity of Col. Kasim’s "asset" and what he
indeed wrote.
We glean from all these pieces of evidence and
developments a consistency in the government’s
denial of any complicity in the disappearance of
Tagitis, disrupted only by the report made by Col.
Kasim to the respondent at Camp Katitipan. Even Col.
Kasim, however, eventually denied that he ever made
the disclosure that Tagitis was under custodial
investigation for complicity in terrorism. Another
distinctive trait that runs through these developments
is the government’s dismissive approach to the
disappearance, starting from the initial response by
the Jolo police to Kunnong’s initial reports of the
disappearance, to the responses made to the
respondent when she herself reported and inquired
about her husband’s disappearance, and even at Task
Force Tagitis itself.
As the CA found through Task Force Tagitis, the
investigation was at best haphazard since the
authorities were looking for a man whose picture they
initially did not even secure. The returns and reports
made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial
records of Tagitis in their various departments and
divisions. To point out the obvious, if the abduction of
Tagitis was a "black" operation because it was
unrecorded or officially unauthorized, no record of
custody would ever appear in the CIDG records;
Tagitis, too, would not be detained in the usual police
or CIDG detention places. In sum, none of the reports
on record contains any meaningful results or details
on the depth and extent of the investigation made. To
be sure, reports of top police officials indicating the
personnel and units they directed to investigate can
never constitute exhaustive and meaningful
investigation, or equal detailed investigative reports of
the activities undertaken to search for Tagitis.
Indisputably, the police authorities from the very
beginning failed to come up to the extraordinary
diligence that the Amparo Rule requires.
CONCLUSIONS AND THE AMPARO REMEDY
Based on these considerations, we conclude that Col.
Kasim’s disclosure, made in an unguarded moment,
unequivocally point to some government complicity in
the disappearance. The consistent but unfounded
denials and the haphazard investigations cannot but
point to this conclusion. For why would the
government and its officials engage in their chorus of
concealment if the intent had not been to deny what
they already knew of the disappearance? Would not
an in-depth and thorough investigation that at least
credibly determined the fate of Tagitis be a feather in
the government’s cap under the circumstances of the
disappearance? From this perspective, the evidence
and developments, particularly the Kasim evidence,
already establish a concrete case of enforced
disappearance that the Amparo Rule covers. From the
prism of the UN Declaration, heretofore cited and
quoted,173 the evidence at hand and the developments
in this case confirm the fact of the enforced
disappearance and government complicity, under a
background of consistent and unfounded government
denials and haphazard handling. The disappearance
as well effectively placed Tagitis outside the
protection of the law – a situation that will subsist
unless this Court acts.
This kind of fact situation and the conclusion reached
are not without precedent in international enforced
disappearance rulings. While the facts are not exactly
the same, the facts of this case run very close to
those of Timurtas v. Turkey,174 a case decided by
ECHR. The European tribunal in that case acted on
the basis of the photocopy of a "post-operation
report" in finding that Abdulvahap Timurtas
(Abdulvahap) was abducted and later detained by
agents (gendarmes) of the government of Turkey.
The victim's father in this case brought a claim
against Turkey for numerous violations of the
European Convention, including the right to life
(Article 2) and the rights to liberty and security of a
person (Article 5). The applicant contended that on
August 14, 1993, gendarmes apprehended his son,
Abdulvahap for being a leader of the Kurdish Workers’
Party (PKK) in the Silopi region. The petition was filed
in southeast Turkey nearly six and one half years
after the apprehension. According to the father,
gendarmes first detained Abdulvahap and then
transferred him to another detainment facility.
Although there was no eyewitness evidence of the
apprehension or subsequent detainment, the
applicant presented evidence corroborating his
version of events, including a photocopy of a post-
operation report signed by the commander of
gendarme operations in Silopi, Turkey. The report
included a description of Abdulvahap's arrest and the
result of a subsequent interrogation during detention
where he was accused of being a leader of the PKK in
the Silopi region. On this basis, Turkey was held
responsible for Abdulvahap’s enforced disappearance.
Following the lead of this Turkish experience -
adjusted to the Philippine legal setting and the
Amparo remedy this Court has established, as applied
to the unique facts and developments of this case –
we believe and so hold that the government in
general, through the PNP and the PNP-CIDG, and in
particular, the Chiefs of these organizations together
with Col. Kasim, should be held fully accountable for
the enforced disappearance of Tagitis.
The PNP and CIDG are accountable because Section
24 of Republic Act No. 6975, otherwise known as the
"PNP Law,"175 specifies the PNP as the governmental
office with the mandate "to investigate and prevent
crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution."
The PNP-CIDG, as Col. Jose Volpane Pante (then
Chief of CIDG Region 9) testified, is the "investigative
arm" of the PNP and is mandated to "investigate and
prosecute all cases involving violations of the Revised
Penal Code, particularly those considered as heinous
crimes."176 Under the PNP organizational structure, the
PNP-CIDG is tasked to investigate all major crimes
involving violations of the Revised Penal Code and
operates against organized crime groups, unless the
President assigns the case exclusively to the National
Bureau of Investigation (NBI).177 No indication exists
in this case showing that the President ever directly
intervened by assigning the investigation of Tagitis’
disappearance exclusively to the NBI.
Given their mandates, the PNP and PNP-CIDG officials
and members were the ones who were remiss in their
duties when the government completely failed to
exercise the extral'>To fully enforce the Amparo
remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of
the PNP and the PNP-CIDG investigations and actions,
and the validation of their results through hearings
the CA may deem appropriate to conduct. For
purposes of these investigations, the PNP/PNP-CIDG
shall initially present to the CA a plan of action for
further investigation, periodically reporting the
detailed results of its investigation to the CA for its
consideration and action. On behalf of this Court, the
CA shall pass upon: the need for the PNP and the
PNP-CIDG to make disclosures of matters known to
them as indicated in this Decision and as further CA
hearings may indicate; the petitioners’ submissions;
the sufficiency of their investigative efforts; and
submit to this Court a quarterly report containing its
actions and recommendations, copy furnished the
petitioners and the respondent, with the first report
due at the end of the first quarter counted from the
finality of this Decision. The PNP and the PNP-CIDG
shall have one (1) full year to undertake their
investigation. The CA shall submit its full report for
the consideration of this Court at the end of the 4th
quarter counted from the finality of this Decision.
WHEREFORE, premises considered, we DENY the
petitioners’ petition for review on certiorari for lack of
merit, and AFFIRM the decision of the Court of
Appeals dated March 7, 2008 under the following
terms:
a. Recognition that the disappearance of
Engineer Morced N. Tagitis is an enforced
disappearance covered by the Rule on the
Writ of Amparo;
b. Without any specific pronouncement on
exact authorship and responsibility, declaring
the government (through the PNP and the
PNP-CIDG) and Colonel Julasirim Ahadin
Kasim accountable for the enforced
disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of
Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief,
and the PNP-CIDG, through its Chief, directly
responsible for the disclosure of material facts
known to the government and to their offices
regarding the disappearance of Engineer
Morced N. Tagitis, and for the conduct of
proper investigations using extraordinary
diligence, with the obligation to show
investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim
impleaded in this case and holding him
accountable with the obligation to disclose
information known to him and to his "assets"
in relation with the enforced disappearance of
Engineer Morced N. Tagitis;
f. Referring this case back to the Court of
Appeals for appropriate proceedings directed
 at the monitoring of the PNP and PNP-CIDG
investigations, actions and the validation of
their results; the PNP and the PNP-CIDG shall
initially present to the Court of Appeals a plan
of action for further investigation, periodically
reporting their results to the Court of Appeals
for consideration and action;

g. Requiring the Court of Appeals to submit to

this Court a quarterly report with its
recommendations, copy furnished the
incumbent PNP and PNP-CIDG Chiefs as
petitioners and the respondent, with the first
report due at the end of the first quarter
counted from the finality of this Decision;

h. The PNP and the PNP-CIDG shall have one

(1) full year to undertake their investigations;
the Court of Appeals shall submit its full report
for the consideration of this Court at the end
of the 4th quarter counted from the finality of
this Decision;

These directives and those of the Court of Appeals’

made pursuant to this Decision shall be given to, and
shall be directly enforceable against, whoever may be
the incumbent Chiefs of the Philippine National Police
and its Criminal Investigation and Detection Group,
under pain of contempt from this Court when the
initiatives and efforts at disclosure and investigation
constitute less than the extraordinary diligence that
the Rule on the Writ of Amparo and the
circumstances of this case demand. Given the unique
nature of Amparo cases and their varying attendant
circumstances, these directives – particularly, the
referral back to and monitoring by the CA – are
specific to this case and are not standard remedies
that can be applied to every Amparo situation.

The dismissal of the Amparo petition with respect to

General Alexander Yano, Commanding General,
Philippine Army, and General Ruben Rafael, Chief,
Anti-Terrorism Task Force Comet, Zamboanga City, is
hereby AFFIRMED.

SO ORDERED.

G.R. No. 230324
LORIE MARIE TOMAS CALLO, Petitioner
vs.
COMMISSIONER JAIME H. MORENTE, BUREAUS
OF IMMIGRATION, OIC ASSOCIATES
COMMISSIONERS BUREAU OF IMMIGRATION
and BRIAN ALAS, BUREAU OF IMMIGRATION ,
Respondents
DECISION
CARPIO, Acting C.J.:
The Case
This is a petition for a writ of amparo (with Prayer to
Issue Interim Reliefs of Immediate Release of Danielle
Tan Parker from Detention) under A.M. No. 07-9-12-
SC (The Rule on the Writ of Amparo). Petitioner Lorie
Marie Tomas Callo (Callo) seeks the immediate
release of Danielle Tan Parker from the Immigration
Detention Facility, Camp Bagong Diwa in Bicutan,
Taguig City.
The Facts
Danielle Tan Parker (Parker) is a holder of Philippine
Passport No. XX5678508 issued by the Department of
Foreign Affairs (DFA) on 5 March 2010 and valid until
4 March 2015.
On 15 January 2013, Parker was charged for
deportation for being an undesirable, undocumented,
and overstaying alien, in violation of Section 3 7 (a)
(7) of the Philippine Immigration Act of 1940, as
amended, in relation to Rule XVI, Office Memorandum
No. ADD-01-004. It was alleged that Danielle
Nopuente was a fugitive from justice in the United
States of America with an outstanding arrest warrant
issued against her. Subsequently, on 24 January
2013, a Summary Deportation Order (SDO) was
issued against Danielle Nopuente, also known
as Isabelita Nopuente and Danielle Tan Parker, upon
verification that she arrived in the Philippines on 23
March 2011 under the Balikbayan Program, with an
authorized stay of a period of one year. Parker was
not in the list of approved applications of the DFA for
dual citizenship and her American Passport had been
revoked by the United States Department of State.
Thus, she was considered an undocumented,
undesirable, and overstaying alien, in violation of the
Philippine Immigration Act of 1940.
On 5 June 2014, pursuant to the SDO issued by the
Bureau of Immigration, Parker was arrested in
Tagaytay City on the premise that Danielle Nopuente
and Danielle Tan Parker are one and the same
person. She was then taken to the Immigration
Detention Facility in Bicutan, Taguig City. She is still
currently detained in the Immigration Detention
Facility as the deportation was not carried out due to
the fact that Parker is charged with falsification and
use of falsified documents before Branch 4, Municipal
Trial Court in Cities, Davao City.
On 12 September 2014, Parker, as petitioner, filed a
Petition for Habeas Corpus before Branch 266,
Regional Trial Court (RTC) of Pasig City. The Bureau
of Immigration was able to produce the body of
Parker before the RTC. The Bureau of Immigration
then alleged that as the SDO had become final and
executory, it served as the legal authority to detain
Parker. The Bureau of Immigration also argued that
Parker cannot be released or deported without the
final disposition of her pending criminal case in Davao
City.
The RTC dismissed the petition, finding that the
detention of Parker was legal.  Parker then appealed
1
the case to the Court of Appeals (CA). The CA
affirmed the RTC and found that Parker failed to
prove that she was a Filipino citizen to warrant judicial
intervention through habeas corpus.  The CA gave
2
weight to the Certification dated 20 June 2015 issued
by the Office of the Consular Affairs of the DFA that
there is "no available data" regarding any
record/information from the year 1990 onwards of
Philippine Passport No. :XX5678508. Parker no longer
appealed the denial of the issuance of the writ of
habeas corpus and the decision of the CA became
final and executory on 5 January 2016. 3
On 23 March 2017, Callo filed this petition for a writ
of amparo with prayer to issue Interim Reliefs of
Immediate Release of Danielle Tan Parker from
Detention. Callo argues that Parker is a natural-born
Filipino citizen and thus, there is no reason for her to
be detained by the Bureau of Immigration.
The Issue
The only issue in this case is whether or not the right
to life, liberty, and security of Parker is threatened by
the respondents to warrant the issuance of the writ of
amparo and subsequently the award of the interim
reliefs.
The Ruling of the Court
The petition has no merit.
Callo seeks the issuance of the writ of amparo and
the interim reliefs available under A.M. No. 07-9-12-
SC for the immediate release of Parker. Callo alleges
that Parker is a natural-born Filipino citizen and thus
should not have been detained by the Bureau of
Immigration. Moreover, Callo alleges that the kife of
Parker is endangered in the detention center; and
thus a writ of amparo with the interim reliefs prayed
for should be issued by this Court.
We disagree.
We disagree.
The protective writ of amparo is a judicial remedy to
expeditiously provide relief to violations of a person's
constitutional right to life, liberty, and security, and
more specifically, to address the problem of extralegal
killings and enforced disappearances or threats
thereof. Section 1 of A.M. No. 07-9-12-SC provides:
Sec. 1. Petition. - The petition for a writ of amparo is
a remedy available to any person whose right to life,
liberty and security is violated or threatened with
violation by an unlawful act or omission of a public
official or employee, or of a private individual or
entity.
The writ shall cover extralegal killings and
enforced disappearances or threats thereof.
(Emphasis
supplied)
It is clear from the above-quoted provision that the
writ of amparo covers extralegal killings and enforced
disappearances or threats thereof  Enforced
4
disappearance is defmed under Republic Act (RA) No.
9851,  Section 3(g) of which provides:
5
(g) "Enforced or involuntary disappearance of
persons" means the arrest, detention, or abduction of
persons by, or with the authorization, support or
acquiescence of a State or a political organization
followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or
whereabouts of those persons, with the intention of
removing from the protection of the law for a
prolonged period of time.
This Court also had the opportunity to define
extralegal killings and enforced disappearance:
Extralegal killings are killings committed without due
process of law, i.e., without legal safeguards or
judicial proceedings. On the other hand, enforced
disappearance has been defined by the Court as the
arrest, detention, abduction or any other form of
deprivation of liberty by agents of the State or by
persons or groups of persons acting with the
authorization, support or acquiescence of the State,
followed by a refusal to acknowledge the deprivation
of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place
such a person outside the protection of the law. 6
In Navia v. Pardico,  this Court clarified that with the
7
enactment of RANo. 9851, the Rule on the Writ of
Amparo is now a procedural law anchored, not only
on the constitutional right to life, liberty, and security,
but also on a concrete statutory definition of
"enforced or involuntary disappearance." Further,
elements constituting enforced disappearance as
defined under RA No. 9851 were clearly laid down by
this Court, viz:
(a) that there be an arrest, detention, abduction or
any form of deprivation of liberty; ·
(b) that it be carried out by, or with the authorization,
support or acquiescence of, the State or a political
organization;
(c) that it be followed by the State or political
organization's refusal to acknowledge or give
information on the fate or whereabouts of the person
subject of the amparo petition; and,
(d) that the intention for such refusal is to remove
subject person from the protection of the law for a
prolonged period oftime. 8
It is clear that the elements of enforced
disappearance are not attendant in this case. There is
also no threat of such enforced disappearance.  While
1âwphi1
there is indeed a detention carried out by the State
through the Bureau of Immigration, the third and
fourth elements are not present. There is no refusal
to acknowledge the deprivation of freedom or refusal
to give information on the whereabouts of Parker
because as Callo admits, Parker is detained in the
Immigration Detention Facility of the Bureau of
Immigration. The Bureau of Immigration also does
not deny this. In fact, the Bureau of Immigration had
produced the body of Parker before the RTC in the
proceedings for the writ of habeas corpus previously
initiated by Parker herself.  Similarly, there is no
9 failed to sufficiently prove that she is a different
intention to remove Parker from the protection of the
law for a prolonged period of time. As the Bureau of
Immigration explained, Parker has a pending criminal
case against her in Davao City, which prevents the
Bureau of Immigration from deporting her from the
country.
Simply put, we see no enforced or involuntary
disappearance, or any threats thereof, that would
warrant the issuance of the writ of amparo. For the
issuance of the writ, it is not sufficient that a person's
life is endangered. It is even not sufficient to allege
and prove that a person has disappeared. It has to be
shown by the required quantum of proof that the
disappearance was carried out by, or with the
authorization, support or acquiescence of the
government or a political organization, and that there
is a refusal to acknowledge the same or to give
information on the fate or whereabouts of the missing
persons.  In this case, Parker has not disappeared.
10
Her detention has been sufficiently justified by the
Bureau of Immigration, given that there is an SDO
and a pending criminal case against her.
Callo contends that there is no cause to detain Parker
because Parker, a natural-born Filipino citizen, is a
different person from Danielle Nopuente, the person
against whom the SDO was issued.
We disagree.
Callo has failed to prove that Danielle Tan Parker and
Danielle Nopuente are two different persons. In
particular, we give weight to the fact that the DFA
issued a certificate verifying that there is no available
data on Passport No. XX5678508, which was the
Philippine passport used by Parker.  Moreover, the
11
Certificate of Live Birth,  which purportedly shows
12
that Parker was born in the Philippines on 21 March
1975 of Filipino parents, was only registered on 4
January 2010. There was no explanation given as to
why Parker's birth was registered only after almost 35
years. Moreover, Callo only alleges facts from the
year 2005, allegedly for purposes of brevity.  We do
13
not see any reason why facts surrounding the
existence of Parker should only be presented from
2005. In fact, the only period that is thoroughly
discussed about her is from 2010 to 2011. To prove
that Parker and Nopuente are two different persons,
the life and existence of Parker should have been
alleged and proven since birth. In this case, there is
no allegation nor any proof as to who Parker was, or
what she had been doing, before 2011. Taking all
these circumstances into perspective, Parker had
person from Danielle Nopuente.
Callo contends that Parker's life is endangered in the
Immigration I Detention Facility because of the
threats against her by her co-detainees and the living
conditions of the facility which pose health problems
for Parker. Unfortunately, these allegations - even if
proven - will not support the issuance of a writ of
amparo. To repeat, the remedy of a writ of amparo is
an extraordinary remedy that is meant to balance the
government's awesome power and to curtail human
rights abuses.  The writ .covers extralegal killings and
14
enforced disappearances or threats thereo1 f as
specifically defined under RA No. 9851. The
circumstances of Parker, as alleged by Callo, do not
meet the requirements for the issuance of the kit of
amparo.
Finally, we note that the petition for the writ of
amparo was filed by Callo. However, there was no
allegation of her relationship to Parker.  In Boac v.
15
Cadapan,  we emphasized the importance of the
16
exclusive and successive order of who can file a
petition for a writ of amparo. We held:
Petitioners finally point out that the parents of Sherlyn
and Karen do not have the requisite standing to file
the amparo petition on behalf of Merino. They call
attention to the fact that in the amparo petition, the
parents of Sherlyn and Karen merely indicated that
they were "concerned with Manuel Merino" as basis
for filing the petition on his behalf.
Section 2 of the Rule on the Writ of Amparo provides:
The petition may be filed by the aggrieved party or by
any qualified person or entity in the following order:
(a) Any member of the immediate family, namely: the
spouse, children and parents of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
denied. Moreover, we see no need to address the
other issues raised by Callo in this petition,
specifically, the condition of the Immigration
Detention Facility and the treatment of Parker in said
detention center. A petition for the writ of amparo is
not the proper action to resolve such issues.
WHEREFORE, the petition is hereby DENIED.
SO ORDERED.

(c) Any concerned citizen, organization, association or

institution, if there is no known member of the
immediate family or relative of the aggrieved party. 1âwphi1

Indeed, the parents of Sherlyn and Karen failed to

allege that there were no known members of the
immediate family or relatives of Merino. The exclusive
and successive order mandated by the above-quoted
provision must be followed. The order of priority is
not without reason - "to prevent the
indiscriminate and groundless filing of petitions
for amparo which may even prejudice the right
to life, liberty or security of the aggrieved
party."

The Court notes that the parents of Sherlyn and

Karen also filed the petition for habeas corpus on
Merino's behalf. No objection was raised therein for,
in a habeas corpus proceeding, any person may apply
for the writ on behalf of the aggrieved party.

It is thus only with respect to the amparo petition that

the parents of Sherlyn and Karen are precluded from
filing the application on Merino's behalf as they are
not authorized parties under the Rule. (Emphasis
supplied)

Thus, while "any person" may file a petition for the

writ of habeas corpus, in a petition for the writ of
amparo, the order of priority on who can file the
petition should be strictly followed. In this case, there
was no allegation nor proof that Parker had no
immediate family members or any ascendant,
descendant, or collateral relative within the fourth civil
degree of consanguinity or affinity. In fact, no
allegation was made on any of the familial
relationship of Parker as only her whereabouts from
2011 were alleged and discussed. Therefore, based
on the order of priority, Callo had no legal standing to
file this petition.

Given that there is no basis for the issuance of the

writ of amparo, the interim reliefs sought for are also